Article On Declaratory Judgments Testing The Enforceability Of No-Contest Clauses

Joseph J. Viviano (Foster, Swift, Collins, & Smith, P.C.) recently published an article entitled, The Use of Declaratory Judgments to Test the Enforceability of No-Contest Clauses, 50 Real Property, Trust and Estate Law Journal, no. 1 (Spring 2015). Provided below is an abstract of the article:

Generally, a no-contest clause is enforceable and will be triggered the moment a beneficiary challenges any provision of the will or trust. However, the Uniform Probate Code provides for a key exception—a no-contest clause is unenforceable if probable cause exists for contesting the will. While there is no equivalent provision in the Uniform Trust Code, many states have applied the Probate Code’s exception to trusts. Under this exception, if a beneficiary has probable cause to contest the trust, he will not forfeit his beneficial interest. Thus, a prudent beneficiary would want to be certain that probable cause exists before contesting a trust that includes a no-contest clause. The author argues that the best way for a prudent beneficiary to achieve this certainty is to seek a declaratory judgment determining whether he has probable cause prior to contesting the trust itself. This method would allow a beneficiary to have a court declare he has sufficient probable cause to contest the trust without triggering the trust’s no-contest clause and risking forfeiture of his beneficial interest.