A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument. These clauses are sometimes referred to as terrorem clauses. Generally, a no-contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument.
Florida law invalidates no-contest clauses in both wills and trusts. Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.”
In Dinkins v. Dinkins, 120 So.3d 601 (Fla. 5th DCA 2013), Florida’s Fifth District Court of Appeals cited well-established law in its decision noting that no-contest clauses are invalid:
“Under a no-contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. Cf. Restatement (Third) of Prop.: Wills & Don. Trans. § 8.5 CMT. b, para. 2 (2003). Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analog, section 732.517.” Dinkins at 603.
Florida statutory and decisional law clearly prohibits no contest or in terrorem clauses in Wills and Trusts.
