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Validity of No-Contest Clauses in Wills Robert E Marquette Law Review Volume 43 Article 7 Issue 4 Spring 1960 Validity of No-Contest Clauses in Wills Robert E. Kuelthau Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Robert E. Kuelthau, Validity of No-Contest Clauses in Wills, 43 Marq. L. Rev. 528 (1960). Available at: http://scholarship.law.marquette.edu/mulr/vol43/iss4/7 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. NOTES Wills: Validity of No-Contest Clauses in Wills-Recently the Missouri Supreme Court was afforded an opportunity to reconsider the validity of "no-contest" clauses in wills. The case involved a will which provided: If any person or persons who are beneficiaries under this my last Will and Testament shall at any time attempt or aid in an attempt to oppose the administration of this will to probate or to have the same set aside or declared invalid, then and in that event, such beneficiary or beneficiaries shall by that act forfeit all right or title to any part of my estate and any and all bequests I have made to them or their descendants under this will, shall be null and void and my estate shall be distributed in the same manner as it would be distributed under the terms hereof if that person or persons had died prior to my death without leaving lineal descendants. Testator's son, who was to receive only $100 under the will had commenced an action to contest the will, alleging that the testator was of unsound mind and was subjected to undue influence at the time he signed the will. The contest was settled by payment of $5,000 to the son from the assets of the estate. Sometime later, when a trust established by the will was to termi- nate and the corpus thereof distributed, a question arose as to whether the children of testator's son were prevented from sharing in such distribution because of the son's violation of the "no-contest" clause. The trustee petitioned for a declaratory judgment seeking construc- tion of the "no-contest" clause and a determination of the persons to whom the corpus of the estate should be distributed. The lower court found that the son had probable cause for contesting the validity of the will but, in light of prior Missouri decisions upholding the validity of such clauses without regard to any probable-cause exception, decided that both the son and his children lost their rights under the will because of the son's contest. On appeal the Missouri Supreme Court was asked to reconsider the doctrine set forth in its prior decisions and adopt the probable-cause exception. After reviewing its prior holdings and the authority in sup- port of the probable-cause exception, it decided that the arguments in favor of the unconditional validity of this type of clause continued to preponderate.' When the contest, as here, is on one of the six usual grounds, namely: forgery, subsequent revocation by later will or codicil, fraud, undue influence, testamentary incapacity, or improper execution, there is a definite conflict of authority on the effect to be given a "no-contest" ' Commerce Trust Company v. Weed, 318 S.W. 2d 289 (Mo. 1958). 19601 NOTES clause. 2 A court confronted with facts similar to those involved in this case would most probably be forced to adopt one of three lines of judicial decisions.3 It could: declare that a "no-contest" condition is valid in every instance; adopt the doctrine that such a condition is valid and enforceable if the contest is merely frivolous and vexatious, but invalid and unenforceable where probable cause for contest is shown and the action was prosecuted in good faith; or simply declare that 4 such a condition is unenforceable in every instance. The doctrine that a provision in a will for the forfeiture of the share of a beneficiary who contests the will is always valid and not contrary to public policy appears to have originated in the English case of Cooke v. Turner5 and is now adopted by numerous jurisdictions.8 The rea- 2 Although not contests within the strict meaning of the term of what can be grounds for contest of a will in probate proceedings (see ATKINSON, WILLS § 96 (2d ed. 1953)), when a contestant alleges that testator devised property which he did not own the courts have consistently held the "no- contest" condition valid. Again considering that the action is technically not a ground for contest unless specifically made so by testator, when the con- testant has shown that testator has made specific dispositions in violation of an express statute or ruling of law, such as the Rule Against Perpetuities, the courts are equally consistent in declaring the condition invalid. See Browder, Testamentary Conditions Against Contest, 36 Mich. L. Rev. 1066, 1074, 1075 (1938). 3 A fourth possibility which might be utilized in a small minority of jurisdic- tions would be the ancient "In Terrorem" doctrine, by which a condition subsequent providing for forfeiture in the event of contest, when imposed on a bequest of personal property, is regarded as "in terrorem" and void un- less followed by a gift over on the breach thereof. This artificial doctrine, having its roots in 17th century English law, is not supported by any policy considerations and is presently used, if at all, partly because it is a convenient device for deciding a case without having to face the problem of public policy. Currently this archiac doctrine occasionally appears as a modification of the probable-cause rule to the effect that a "no-contest" condition will not be enforced if the contestant had probable cause, provided there is no gift over on breach of the condition. For a discussion of the origin and present status of this doctrine, see Browder, supra note 2, at 1092, 1100; and Browder, Testamentary Conditions Against Contest Re-examined, 49 Colum. L. Rev. 320, 338, 339 (1949) ; Wells v. Menn, 158 Fla. 228, 28 So. 2d 881 (1946). 4 Claims of representing the majority are made by proponents of both the first and second views. CJ.S., Wills § 983 contends that the first view is majority. See 67 A.L.R. 52, 64 (1940) and 125 A.L.R. 1135, 1136 (1940) to the effect that the first view is minority and the probable-cause rule is majority. Note however, that ATKINSON, WILLS § 82 (2d ed. 1953) and PAGE, WILLS § 1306 (3d ed. 1941) do not commit themselves on which view is majority. Latest research indicates there is a fairly even division. Browder, supra note 3. Itmust also be noted that ruling cases in many jurisdictions holding with the claimed majority or minority were decided long ago and have not had their postion re-examined in the light of contemporary con- cepts of public policy. States that claim to adopt the more stringent first view often avoid its harsh effect in particular cases by way of construction to avoid finding a breach. 5 15 M. & W. 727, 153 Eng. Rep. 1044 (1846). GSmithsonian Institution v. Meech, 169 U.S. 398 (1898) ; Donegan v. Wade, 70 Ala. 501 (1881) ; Estate of Hite, 155 Cal. 436, 101 Pac. 443 (1909) ; Cohen v. Reisman, 203 Ga. 684, 48 S.E. 2d 113 (1948); Hurley v. Blankenship, 267 S.W. 2d 99 (Ky. S. Ct. 1954); Rudd v. Searles, 262 Mass. 490, 160 N.E. 882 (1928); Schiffer v. Brenton, 247 Mich. 512, 226 N.W. 253 (1929); Rossi v. Davis, 345 Mo. 362, 133 S.W. 2d 363 (1939); Burtman v. Butman, 97 N.H. MARQUETTE LAW REVIEW [Vol. 43 sons for holding such a provision in a will valid without exception for probable-cause are based on an interpretation of public policy. Some courts hold that there is no public policy involved since the state has no interest in who possesses the property in question. As stated in this early case: ...the state has no interest whatever apart from the interest of the parties themselves. There is no duty on the part of an heir, whether of perfect or imperfect obligation, to contest his ances- tor's sanity. It matters not to the state whether the land is en- joyed by the heir or the devisee; and we conceive, therefore, that the law leaves the parties to make just what contracts and what arrangements they may think expedient as to the raising or not raising questions of law or fact among one another, the sole result of which is to give the enjoyment of property to one claimant rather than another.7 In answer to this argument that the state has no interest in whether the heir or the devisee enjoys the use of the land, Chancellor Wardlaw of South Carolina stated: It seems to me that this is a very narrow view of public policy. It is the interest of the state that every legal owner should enjoy his estate, and that no citizen should be obstructed by the risk of forfeiture from ascertaining his rights by the law of the land. It may be politic to encourage parties in the adjustment of doubtful rights by arbitration or by private settlement; but it is against the fundamental principles of justice and policy to inhibit a party from ascertaining his rights by appeal to the tribunals estab- lished by the state to settle and determine conflicting claims.
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