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Forfeiture Clauses Are Not Always Effective

Will forfeiture clauses are designed to discourage legal challenges to wills. While they can help limit bad challenges by punishing the challenger, they do not always have the same effect on reasonable challenges.

Forfeiture clauses normally state that anyone who challenges a will and loses then forfeits any bequest made to him or her in the will. For example, if a will states that someone should inherit 25% of the estate and that person challenges the validity of the will and loses, then under the terms of the forfeiture clause that person cannot inherit the 25% of the estate. This is a good way to discourage someone from challenging a will, especially when they do not have a good basis to challenge.

However, if the person does have a legitimate reason to challenge the will, the forfeiture clause is unlikely to deter him or her too much. One reason for this is that if the will is declared to be invalid, then the forfeiture clause is also invalid. A recent post in The Wills, Trusts & Estates Prof Blog points out another reason in “New Case: Parker v. Benoist.”

In this case, a Mississippi court ruled that if there was probable cause to contest the will and the challenge was made in good faith, then a person could still inherit despite the terms of the forfeiture clause. The reason for this is that courts do not want to discourage people from bringing legal actions when they have good reason to bring them.

The law is different in every state. The ruling in Mississippi, however, does represent a trend regarding where courts are going with forfeiture clauses. Speak to an elder law or estate planning attorney in Georgia about the rules in here and about potential alternatives to a forfeiture clause to prevent challenges to your estate plan.

Reference: Wills, Trusts & Estates Prof Blog (August 30, 2014) New Case: Parker v. Benoist

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