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Case Law Update: Will Contest Clause

Posted Wednesday, February 27, 2019 by Christopher L. Thayer

The Washington Court of Appeals, Division I, in the matter of In Re Rai-Choudhury (No. 77740-8-1, February 25, 2019) rendered a decision about the impact of a “no contest” clause in a Last Will and Testament.

Margaret Rai-Choudhury, age 82, executed a Last Will and Testament on July 21, 2015. She executed the Will in the presences of two witnesses. Both witnesses declared Margaret appeared to be of sound mind and under no duress or undue influence. The will declared it was Margaret's intention to leave none of her property to ex-husband or to their only child. One-half of her estate was to go to into a trust for the benefit of her grandson, Khashon Haselrig. The Will contained a “no contest” provision, whereby a beneficiary who contests the Will loses his or her interest in the estate. Ms. Rai-Choudhury designated a professional guardian to act as her personal representative.

Ms. Rai-Choudhury died on November 25, 2016. Unable to locate the original Will, the attorney who drafted the Will filed a copy of the Will, attested to by the two witnesses who had witnessed the original Will signing. Khashon filed a motion requesting removal of the personal representative and revocation of the probate, arguing the copy of the Will should never have been admitted. Khashon argued the copy of the Will should not have been admitted because the Personal Representative had not proven the Will had not been intentionally revoked. The trial court denied Khashon’s motion. Four months later, Khashon sought to “void fraudulent admission of copy of Will”, for removal of the Personal Representative and for sanctions. The trial court again denied Khashon’s request.

The Personal Representative then sought a ruling from the trial court confirming Khashon’s actions violated the “no contest” provisions of the Will. The trial court agreed and barred Khashon from inheriting any portion of the estate. Khashon appealed.

An interested person may contest the validity of a probated will within four months following the probate by filing a will contest petition with the court. RCW 11.24.010. RCW 11.24.010 provides:

If any person interested in any will shall appear within four months immediately following the probate or rejection thereof, and by petition to the court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he or she shall file a petition containing his or her objections and exceptions to said will, or to the rejection thereof. Issues respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of the last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of the will or a part of it, shall be tried and determined by the court.

Generally, “no contest” clauses in wills are enforceable in Washington. In re Estate of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999). The no contest provision in Ms. Rai-Choudhury’s Will was expansive:

If a beneficiary named under this Will or one of my beneficiaries at law shall in any manner contest or attack this Will or any of its provisions, then in such event any share or interest in my estate given or passing to such contestant is hereby revoked. . . . This paragraph shall not be construed to apply to any action brought in good faith to interpret a provision of this Will which may be unclear or ambiguous.

The Court of Appeals noted "A court may treat a motion as a will contest, even where the petitioner styles it otherwise." In re Estate of Finch, 172 Wn. App. 156, 162, 294 P.3d 1 (2012). Khashon cannot circumvent the no contest provision by styling his attack on the validity of the will as a procedural motion.

This decision illustrates the power of a “no contest” provision in a Will, and the perils of a bitter beneficiary who decides to pursue an aggressive litigation strategy. Khashon went from standing to inherit 50% of his grandmother’s estate to zero.

If you have a question about a Will Contest provision, please contact Managing Partner, Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.