Douglas A. Turner, P.C.

View a complete copy of Anna Nicole Smith’s will here.

(Originally published in print - March 2007)

No Contest Clauses

If you read the previous article, you know the situation. The lovely Anna Nicole Smith has passed before her time in a Florida hotel room, as a resident of the Bahamas with a will drafted in California. The will executed in 2001 specifically provides for her son who committed suicide after the will was executed. The will makes no mention of her daughter who was born after the will was executed. The multimillion-dollar question is whether Anna Nicole Smith intentionally did not provide for that daughter.

The No Contest Clause: Another Potentially Damaging “Standard Clause” in Wills

The will also contains something called a no contest clause. In article VI, Anna Nicole Smith disinherits any heir that disputes the terms of the will in any way, shape or form. It is a very broad clause. It is another “standard” clause found in many wills. It is a clause we do not include without giving it serious thought. The reason why can be seen in the Anna Nicole Smith saga.

The problem with a no contest clause is that a bona fide dispute may exist about the meaning of a will or even just a sentence in a will. Predicting the family situation on the day of death is difficult if not impossible. Language that seems very clear on the day the will was written is not always so clear on the day a person dies. The lawyer may make minor drafting mistakes that impact the interpretation of the document.

Reasons to Avoid the No Contest Clause

Weigh these potential reasons to avoid a no contest clause against the benefits of the clause. Exactly who will challenge the will? Is it somebody provided for in the will? Or is it somebody not provided for in the will? If the challenger is not provided for in the will, the no contest clause has little impact on their actions — they have already been disinherited! The impact is upon those who inherit something from the deceased.

I am willing to bet that most people who have a no contest clause in their will cannot think of a reason for the clause. Some may argue that the no contest clause is needed as a precautionary measure. However, as a probate practitioner, I have seen far more legitimate interpretation issues than intentionally troublesome heirs.

The Anna Nicole Smith situation is a good example of the interpretation issues that can arise. The issue is whether Ms. Smith intended to exclude any children born to her after the execution of the will from inheriting under the will. At first glance, the document appears to exclude everybody but her son. Let’s assume for a moment that Ms. Smith’s son did not die. If the son, who was provided for in the will, decided to contest any portion of the will, he could be disinherited by the no contest clause. If the daughter who was not provided for in the will decided to contest the will, she has nothing to lose. She was not provided for in the first place.

Fortunately, most states disfavor enforcement of a no contest clause. Most states will apply some sort of lenient burden of proof to the contestant. For example, if the contestant had a valid reason to challenge the will or some phrase within the will, the court will not enforce the clause as a matter of public policy even if the challenge fails. A no contest clause in a will is probably not sufficient reason to revise a will. However, it is something to consider removing when the will is eventually revised.