No-contest clause

A no-contest clause, also called an in terrorem clause, is a clause in a legal document, such as a contract or a will, that is designed to threaten someone, usually with litigation or criminal prosecution, into acting, refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will that threatens to disinherit a beneficiary of the will if that beneficiary challenges the terms of the will in court. Many states in the United States hold a no-contest clause in a will to be unenforceable, so long as the person challenging the will has probable cause to do so.

The Uniform Probate Code (UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will doesn't have probable cause to do so. The full wording is:

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

The UPC has been adopted in several smaller states, including Alaska, Idaho, Montana, and New Mexico, but also by Florida, one of the larger states in population.

Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.

In California, no-contest clauses are of limited effect, and will divest a party that unsuccessfully contests a will containing such a clause only if the Court determines that the party brought the action without probable cause. Probate Code §§ 21310–21315. These statutes, which comprise California's statutory scheme governing the enforceability of no-contest clauses, became effective January 1, 2010. As of that date, the predecessor statutes are repealed.

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