Challenging a Will When the Will Contains a "No Contest/In Terrorem" Clause

With second marriages and blended families being common, estate planning has become a bit more complicated. A couple may have “her” children, “his” children, and “our” children. They may wish to treat these groups of children differently in their estate plan. Someone may be disappointed when the Last Will is probated. In order to prevent this fight, a person can add a “no contest” clause, also known as an “in terrorem” clause, to his or her Last Will. Such clauses typically disinherit any person who unsuccessfully contests a Last Will. But are these clauses enforceable and should you be discouraged from contesting a Last Will that contains such a clause?

Colorado’s Probate Code addresses the enforceability of no-contest clauses. Such a clause will not be enforced of probable cause exists to challenge a Last Will. C.R.S. §§ 15-11-517 and 15-12-905. A leading Colorado case on no-contest clauses 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.”

While some states simply refuse to enforce no-contest clauses, Colorado courts have enforced such clauses based on a finding of no probable cause. What this means for the Colorado beneficiary who is unhappy with what they will receive under a Last Will is a careful and thorough evaluation of the facts. A potential contestant should remember that it is always better to receive something under a Last Will rather than nothing.

If you believe that a Last Will was signed under undue influence, or the person who signed the Last Will may have lacked the capacity to sign, but the Last Will contains a no-contest clause, our attorneys can sit down with you and discuss your options.