No Contest Clause in a Wil and Instances where an Heir May be Disinherited.
The rationale behind a will is to allow a person to leave behind a clear command regarding the manner in which his property will be distributed after his death.
This rationale also allows the testator to condition terms and conditions in his will, where one of these conditions is a no-contest clause which in some cases disinherits a person who was defined as an heir by virtue of the will. This is an essential mechanism that can lead to the prevention of opposition to the will.
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
What is a Will?
A will is an expression of a person’s wishes regarding the distribution of his property after his death. A will is necessary in light of the fact that in most cases a person leaves behind a lot of property after his death which needs to be redistributed to new owners. The Law of Inheritance allows any person to create a “distribution mechanism”, but this mechanism is subject to a number of conditions designed to ensure that a person’s will reflects his clear and authentic desire.
What is a no-contest Clause? No-Contest Clause
The term no-contest is derived from section 44(a) of the Law of Inheritance, according to which the testator can stipulate in his will that his heirs, some or all, will not be entitled to their inheritance if a certain condition is met . A no-contest clause establishes a special condition in relation to the heirs, by virtue of the will, the stipulation states that if any of the heirs acts to oppose the implementation of the will in any way, the will be disinherited of his share of the inheritance.
“Indeed, the no contest clause in itself is not automatically void. It is given validity by virtue of the reasons that support it… Therefore, if an heir (according to the will) opposes its existence with idle claims, and in bad faith, there is room to uphold what is stated in the stipulation. In this state of affairs, the considerations supporting the validity of the stipulation have the upper hand. However, it should not be given validity when the objection is based on a reasonable and valid reason, and of course, this has to be done in good faith. This approach to the no-contest clause maintains a proper balance between the various opposing considerations. It discourages an heir from raising idle and dishonest claims while protecting heirs who have a reasonable and bona fide claim. This balanced view promotes the true will of the testator. … My opinion is that the no-contest clause applies, but it will not be given effect in instances where the heir objects in good faith and where the objection is reasonable under the circumstances. “
From the words of former Israeli Supreme Court Judge Aharon Barak in a civil appeal: 245/85 Judith Engelman v. Marta Klein
The wording of the no-contest clause
The wording of the no-contest clause, which should, preferably, be drawn up by a lawyer specializing in drafting wills, includes an instruction from the testator demanding that his will be respected and his desires carried out. This instruction states that if any of the heirs decide to oppose the will (effectively, not respecting the testator’s instruction) via, among other options, the process of opposition to the execution of a will, this behavior will constitute a condition – according to section 44(a). which will result in his removal from the will.
Reasons for Including a No-Contest Clause in the Will
One of the concerns of those who draw up a will is the option of an argument breaking out between his heirs after his death. Disputes of this type are very common even in cases where the assets inherited are relatively modest and between a limited number of heirs. Needless to say, these disputes are just as common in cases where there are copious heirs and a relatively large inheritance. The law allows the heir, and non-heirs to file an objection to the execution of the will, thereby delaying the distribution of the inheritance according to the will.
Including a no-contest clause in the will is an ideal measure aimed at preventing opposition to the will by any of the heirs who may see themselves disadvantaged by the manner in which the assets are distributed by the will, and in relation to the other heirs. The ability of the no-contest clause to bring about the prevention of objection to the will lies in the risk that the objecting heir takes of losing his share in the will in the event that his objection lacks any justified basis.
Conditions for Disinheriting an Heir from the Will
As stated above, the no-contest clause can state that in a situation of opposition to the execution of the will by one of the heirs, and if the objection is deemed to have been done in bad faith, said objecting heir will be disinherited from the will.
However, even though the no-contest clause is based on a legal provision that allows the testator to establish a mechanism to prevent opposition to the will from his heirs by (denying them their share in the inheritance), this provision is examined against additional rules that apply to the testator’s will.
The disinheriting can be done in relation to a variety of conditions that are not necessarily cases of opposition to the execution of a will. You can contact a will lawyer in order to get information about different legal types of disinheriting clauses that can be made in wills.
Accepting the Objection Despite the No-Contest Clause
The rules according to which the will is examined are derived from the Inheritance Law and the ruling of the Supreme Court discussing no-contest clauses, these state that the validity of the will is granted when it is based on the will of the testator, there are no defects that go to the root of the matter and it does not contradict public policy.
If it is decided that the will contains irremediable defects or that there is doubt as to whether the will is a complete reflection of the will of the testator due to an heir’s objection – the no-contest clause requiring the prevention of any objection to the will may not be accepted by the court that is hearing the objection. You can get more information about this by consulting an attorney whose field of expertise is wills.
Exceptions to a No-Contest Clause
There are scenarios that the system wishes to avoid, in which an heir objects to a will with positive intentions and in good faith and is disinherited because of a no-contest clause. Therefore, an heir will be disinherited due to a no-contest clause only if his objection is rejected and is also deemed in bad faith.
Including a no-contest clause in a will - do so only with a family lawyer specializing in inheritance law!
The no-contest clause is an effective “warning” measure whose purpose, among other things, is to prevent opposition to the will which is addressed to the heirs. This clause clearly indicates to them that they must respect the will of the testator.
At our firm, Mor & Co., we specialize in drafting wills that incorporate no-contest clauses in a professional manner that is consistent with the requirements of the law and rulings in Israel.
Mor & Co.’s family law department has extensive experience in this area of law. As part of our daily activities, we handle inheritance and estate cases, as well as representation and litigation in the courts.
With extensive experience in inheritance and estate litigation, we undertake to do our best and make available to our clients our rich experience in the field, while observing all legal processes and protecting your interests.
We are available to provide legal advice (without obligation) regarding wills or objections to wills
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No-Contest Clause
A no-contest clause (NCC), also known as in terrorem clause, is a provision added by the testator of a will which deprives a beneficiary of a legacy if they challenge the will after the testator’s death.
