Mississippi recognized “good faith and probable cause” exception to a forfeiture In Terrorem (i.e., no contest) Clause.  The California Supreme Court ruled that a No-Contest clause in a trust was unenforceable except under specific circumstances.

The aging of baby boomers may soon bring additional will contests to probate courts across the country.  It is clear that a properly drafted trust is more difficult to challenge than a will.

Prominent Estate planning attorney Roy M. Adams has publicly declared:  “Half of many trusts and estates lawyer’s practices is in estate ligitation.”  Later he declared that “estate litigation” resulting from disgruntled, greedy or power-mad heirs is now the “number one litigation” issue in the United States.

As to drafting “no-contest” clauses for Wills and Trusts, simple one paragraph language is no longer sufficient in today’s litigation climate, and, thus, it now requires several pages for a truely protective no-contest provision.  Furthermore, no-contest language is NOT enforceable in Florida and Indiana, and, California recently changed the law in such a manner that makes it more difficult to enforce a no-contest provision in a Will or Trust.

Such laws, if course, can be a major factor in generating fees for certain members (both plaintiff and defense attorneys) of the legal profession.

In case of doubt, one of our client’s was killed in an auto accident in December 2013.  Our law firm had prepared this deceased client’s estate plan in 1992, updated it in 2000 and again in 2005 with extensive involvement of one son and his wife, yet after the father’s death the son and wife promptly declared that “this is not what father wanted.”  You can not always trust your children.