In general, a will is a legal document that expresses a person’s wishes as to how property distributes after death. There are often a number of provisions to ensure that the will is executed as the testator intended. One of these provisions that is sometimes put into a will is a “no contest” clause or “knockout” provision.
What is a “No Contest” Clause?
A “no contest” clause is broadly defined as a clause in a will designed to penalize beneficiaries from challenging or contesting a will or instituting other proceedings relating to the estate. In most cases, these clauses are valid and enforceable. However, South Carolina recognizes an exception as to when these no contest clauses are not enforceable. In South Carolina, courts have found that when a challenger has probable cause for challenging the will or instituting additional proceedings, the no contest clause is not enforceable and will not be withheld.
An example of a no contest clause is as follows: “If any beneficiary under this will seeks to obtain in any proceeding in any court an adjudication that this will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this will or any of its provisions, then the right of that person to take any interest given to him or her by this will shall be determined as it would have been determined had such person predeceased the execution of this will without issue.”
Do I Need a No Contest Clause in SC?
In practice, there are several reasons for a no contest clause. Some of these reasons include: (1) preventing estates from costly and time-consuming litigation; (2) diminish the amount of arguing over the capabilities of testators; and (3) minimize the arguments over the different amounts of money or anything of value given. The main purpose of this kind of clause, however, is to put beneficiaries in fear of losing their inheritance if they challenge the will in court.
Most estate planning lawyers in South Carolina recommend a no contest clause. They are common in other states as well, and for good reason. Wills have all kinds of provisions. Understanding those provisions will help the personal representative understand how to properly probate a South Carolina will.
If you need help probating a SC estate, call our office at 843-212-3188.