No-Contest Clauses in Kentucky Wills and Trusts: Are They Enforceable?
If you’re thinking about contesting a loved one’s will or trust, you may have been warned: “Be careful — there’s a no-contest clause.” These clauses (sometimes called “in terrorem” clauses) are designed to discourage beneficiaries from challenging the document by threatening to disinherit anyone who does. But are they actually enforceable in Kentucky? The answer is nuanced — and understanding the rules can make the difference between losing your inheritance and protecting your rights.
What Is a No-Contest Clause?
A no-contest clause is a provision in a will or trust that says, in essence, “If any beneficiary challenges this document, that beneficiary forfeits their inheritance.” The purpose is to deter litigation — the idea being that a beneficiary will think twice about filing a contest if doing so could cost them everything they stand to inherit.
Are They Enforceable in Kentucky?
Kentucky courts have generally recognized the validity of no-contest clauses, but they’re not absolute. The enforceability of a no-contest clause depends on the specific language of the clause, the nature of the challenge, and whether the challenger had probable cause to bring the action.
Under the Kentucky Uniform Trust Code, KRS 386B.10-030 provides that a no-contest clause in a trust is enforceable — but it is not enforceable against a beneficiary who brings a contest with probable cause. This is a critical protection: if you have a legitimate, good-faith basis for challenging the trust, the no-contest clause shouldn’t be used to punish you for doing so.
The “Probable Cause” Standard
Probable cause, in this context, means a reasonable basis for believing that the challenge has merit. If you can point to concrete evidence of undue influence, lack of capacity, fraud, or other grounds — and a reasonable person looking at that evidence would agree there’s something to investigate — you likely have probable cause. A frivolous contest filed without any factual basis, on the other hand, could trigger forfeiture under the clause.
This standard strikes a balance: it protects the testator’s or settlor’s intent to discourage nuisance litigation while ensuring that legitimate claims of wrongdoing can still be pursued.
Strategic Considerations
If a will or trust contains a no-contest clause, the decision to file a contest requires careful analysis. You need to weigh the strength of your evidence against the risk of forfeiture, the value of your existing bequest against the potential recovery if the contest succeeds, and whether there are alternative approaches — such as negotiation or mediation — that might achieve your goals without triggering the clause. This is precisely the kind of situation where getting a lawyer’s assessment before taking action is essential.
If you’re facing a no-contest clause and want to understand your options, call me at (859) 225-9540 or use the contact form.
Joseph D. Buckles is a probate litigation attorney at Buckles Law Office, PLLC in Lexington, Kentucky.
