As we make our way into a new year, it’s a good time to ask what trends we’re likely to see in 2020 in the world of estate litigation. Three main trends stand out in my mind: litigation over increasingly broad no contest clauses, an increase in contested guardianship and conservatorship litigation, and the advent of litigation over electronic wills.
Litigation Over Increasingly Broad No Contest Clauses
I predict that in 2020, we’ll see increased litigation over the scope and enforceability of no contest clauses, also referred to as in terrorem clauses. In short, no contest clauses are provisions contained in wills or trusts that provide that if a litigant commits conduct that falls within the scope of the clause, he is prohibited from inheriting via the will or trust. The conventional no contest clause sought to penalize contests to the validity of wills or trusts. If the contest was successful, then the will or trust was declared invalid, thereby eliminating the enforceability of the no contest clause contained within the will or trust. But if the contest failed, the unsuccessful litigant would forfeit any inheritance he may have otherwise stood to receive under the will or trust (except if certain conditions applied, such as the doctrine of good faith and probable cause). In short, no contest clauses traditionally applied just to contests to the validity of wills and trusts.
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