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Ray....In my mother's Will, there is a no contest clause…

Hi Ray....In my mother's Will...
Hi Ray....In my mother's Will, there is a no contest clause stating if any body contests or joins in to contest the validity of the Will, they will be listed from the Will as if they were dead.(something like that) but she also has another clause that even if there was probable cause they would be treated the same way. How come they can claim this couldn't apply to them?
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Answered in 4 hours by:
10/17/2017
RayAnswers
RayAnswers, Attorney
Category: Estate Law
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Experience: Texas lawyer for 30 years in Estate law
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

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It is a minefield here in Arizona.The Courts apply the following standards.

In order to reconcile the competing reasons to enforce or disregard forfeiture clauses, such clauses are enforced and the challenger is disinherited or penalized only if the challenger’s claim lacked “probable cause.” ARS § 14-2517 provides that “A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for that action.” That section applies only to wills. There is no statute dealing with penalty clauses in trusts. But, because trusts are viewed as will substitutes, the probable cause requirement on penalty clauses in wills also applies to trusts. So, if a challenge to a will or trust had probable cause, the challenger will not be disinherited, even if he loses the challenge.

So what is probable cause? The Arizona Supreme Court has defined probable cause as

the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful. The evidence needed … should be less where there is strong public policy supporting the legal ground of the contest or attack …. A factor which bears on the existence of probable cause is that the beneficiary relied upon the advice of disinterested counsel sought in good faith after a full disclosure of the facts.

In order to have probable cause, the challenger must have objective evidence based upon which to conclude that there was a substantial likelihood of winning the challenge. And the challenger must have the evidence at the time that the contest is filed. In other words, later discovered evidence will typically not support a finding of probable cause. The challenger must also have a subjective actual good faith belief that the contest will likely succeed as of the time that the claim is initiated.

The probate court would determine whether probable cause existed, as of the time that the challenge was filed, separately with respect to each claim. So, if the challenger attacks the will or trust on multiple separate grounds, the court must determine whether each and every separate claim had probable cause. If even one claim lacked probable cause, the no-contest clause will apply and the challenger will lose whatever benefits that he otherwise may have been entitled to receive.

The court has to decide here whether such persons challenging the will to do so or to apply the no contest language.It may end up applying to them if the court finds the challenge was not in good faith.

I appreciate the chance to help you tonight.Thanks and thanks for rating 5 stars.Let me know if you have more.

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