No Contest Clauses.

Trust litigation appears to be the new era. 

I was at a meeting today where the featured speaker spoke solely about no contest clauses. He started his presentation by stating that trust litigation was the last bastion to be kept safe from the reaches of litigation attorneys. He felt that the flood gates has opened with respects to trust litigation.

And so it began his discussion of no contest clauses. He said the following in a nice nutshell that I jotted down to pass along:

1. Don't cut anyone out completely. Even if you hate them, you'd hate them even more if they successfully contested your trust or other estate plan. I agree. Give them a gift.

2. All trust amendments must contain another no contest clause so that the existing no contest clause in the trust also applies to the amendment.

3. Protect collateral documents that are a part of your estate plan by including those in your no contest clause.

4. Mention the troublesome beneficiaries in your trust so the court can ascertain your intent and why you are cutting them off.

5. Make your intent clear as a settlor or the person who created the trust. Videos, letters, etc. can help your successor trustee fight your trust in court after you pass away.

6. Be creative with your no contest clause. Creativity can make it easier to enforce as the court will likely have never seen the language before and may rule in your favor especially if you are foreseeing a trust contest.

Don't be too alarmed though. Most families are pretty happy. Most parents want to leave everything to each of their children equally. If this is your case, there is no reason to have anything other than a straightforward no contest clause. But if you are concerned, talk to your attorney and make sure your attorney understands the issues.