How Can a Beneficiary be Discouraged from Contesting my Will
Gifts in wills can stir up strong emotions, especially if someone feels they have been treated unfairly by the person who made the will.
If the person writing the will (called the testator) wants to give gifts that might seem unfair, they can consider including a “no-contest clause” also known as in terrorem or forfeiture clause. This will hopefully have the effect of discouraging litigation by the relevant beneficiaries. A gift to a beneficiary who contests the will may be forfeited. However, these clauses need to be carefully drafted. Here are some things to keep in mind, especially for wills in Hong Kong:
1. Certainty
The clause must be clear about what counts as a challenge. For example, it could say:
- “If a beneficiary contests or disagrees with my will…”
- “If a beneficiary questions the validity of this will and the trust created under it…”
- “If a beneficiary takes any steps to challenge this will (whether directly or indirectly) …”
2. Repugnancy, ouster and public policy
A no-contest clause might be void if:
- repugnancy, if it is inconsistent with the terms of any gift to a beneficiary;
- ouster, if it ousts the jurisdiction of the court; or
- public policy, if it is contrary to public policy, such as ousting a beneficiary’s statutory benefits.
3. Gift over
A no-contest clause should provide for the forfeiting of the interest of a contesting beneficiary and a gift over of that interest to other non-contesting beneficiaries or to the residuary estate.
Eddie Look and Raymond Liu
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
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