The common school of thought amongst many people in Georgia may be that if and when you are fortunate enough to be part of a person’s estate plans, you should respect their wishes as outlined in their estate planning documents (even if you have a reason to disagree with how the instructions in those documents dispose their assets or property).
Previous posts on this blog outline how a settlor can deter their beneficiaries from fighting over their estates, as well as exactly who can initiate a will contest. These point out the fact that while contesting a will may be an option, you could stand to have your interest in an estate reduced (or invoke a complete disinheritance) should the settlor include a no-contest clause in their estate plans. Yet are such clauses enforceable?
Arguing good fatih
Many people might tell you that as long as you demonstrate good faith in citing your reasons to challenge the terms of a will, you cannot be subject to any no-contest clause that it may contain. Yet that may not be the case in Georgia. Indeed, previous state Supreme Court rulings recognize that there is no mention in the state’s probate code designating a good-faith exception to no-contest clause enforceability (in such rulings, the courts typically claim that only the state legislature can apply such a standard statutorily).
The exception to no-contest enforceability
This is not to say that there are no exceptions to no-contest clause enforceability allowed by state law. Indeed, Section 53-12-22 of the Georgia Trusts Code states that a no-contest clause is not enforceable if there is no language included in a will detailing the redistribution of any property subject to disinheritance in the event the clause is actually initiated.