NO CONTEST CLAUSE IN A WILL AND OTHER MATTERS

Do you know what a No Contest Clause in a will is? Do you know the purpose that such a clause serves? I recently had cause to explain to Jeffery (fictitious name) a few matters concerning the making of a will and the use of a no contest clause. I had been contacted by Norma, Jeffery’s common law wife. Jeffery had recently learned that he was terminally ill and he wanted to put matters right. Jeffery and Norma have been living as man and wife for over 40 years. They have no children of their own. However, Jeffery has two adult children from a previous relationship. Jeffery ended that previous relationship when his children were young and shortly thereafter he moved in with Norma. Jeffery’s two children grew up with him and Norma. Jeffery loved Norma deeply but he never formally married her because of his belief that ‘If it ent broke don’t fix it’.

After Jeffery’s children became adults they re-established their relationship with their biological mother. The biological mother of the children, not surprisingly, dislikes Norma intensely. Soon the now adult children took up the cause of their biological mother, became hostile to Norma and cut off all contact with her.

Jeffery owns a house and a plot of land in St. George’s. He inherited the property from his father and feels that the right thing to do is to leave it to his children. He wants the property to go to his children but he also wants to prevent them from kicking Norma out on the streets, should she survive him.

Life interest for Norma

I told Jeffery that it is important that he makes a will since without a will Norma would have no rights to the property. I explained to him that to protect Norma he can will the property to his children but subject to a life interest to Norma. The effect of such a clause in his will is that his children will not get the property immediately upon his death but only after Norma dies.

Executor & safe custody of will

Additionally, I pointed out to Jeffery that it is important that he chooses his executor carefully. He should appoint a strong person as his executor; one who would carry out his wishes. He should also ensure that his will is kept safely so that it would be available for the executor after he died. If the will cannot be found, it would be just as if Jeffery did not make a will. Norma would have no rights to the property and she could be kicked out by the children

Witnesses & No contest clause

I explained to Jeffery that he should not rule out the possibility that his children would seek to challenge the will. They could claim that he made the will when he was declared terminally ill and was not of his right mind.

I explained to Jeffery that it is important to carefully choose the witnesses in front of whom he executes his will. That given his medical condition, it would be good if one of the witnesses is a doctor who has attended to him over a period of time. If it becomes necessary, such a doctor can testify that he was of sound mind when he made the will.