What is a forfeiture clause in a last will and testament?

On Behalf of | Jul 26, 2021 | Estate Planning |

A lot of thought and preparation can go into creating a will. Beneficiaries are chosen and assets are distributed according to the wishes of the person making the will. But sometimes, beneficiaries may choose to contest the will, either in whole or in part. What if that will contains a forfeiture clause?

Forfeiture clauses explained

A forfeiture clause is a provision included in a will which may affect asset distribution if the will is challenged. The purpose of the clause is to dissuade beneficiaries from challenging the will. The person who makes the will and includes the provision is attempting to prevent litigation before it begins.

To do so, the language of a forfeiture clause voids the right of anyone who contests the from collecting anything distributed by the will. For instance, if a family member, who was named in the will as a beneficiary, contests the will and attempts to change its terms, they run the risk of triggering the forfeiture clause and losing out entirely.

How are they enforced?

Texas Estates Code Section 254.005 sets forth the law regarding enforcement of forfeiture clauses. But the courts take a relatively narrow approach to them and do not enforce them unless required. If the person bringing the challenge can show they had just cause for the challenge, and did so in good faith, the clause will generally not be enforced.

The challenger bears the burden of proving just cause and good faith – they must do so by a preponderance of the evidence. If they fail to do so, the court can enforce the forfeiture clause and the challenger can lose all rights they may have had within the will. Contesting a will can have unforeseen consequences and should not be done lightly.

 

Archives