Some people wish to leave certain children, grandchildren or others out of their wills, or leave them less than others. These clients may wish to use a “no contest” clause. This clause in a will states that a beneficiary of the will who contests its provisions will be cut out completely. The Mississippi Supreme Court recently held that such clauses may be unconstitutional.
In 2010, Billy Dean “B.D.” Benoist executed a will which significantly altered the distributions provided by a previous mutual reciprocal will that B.D. had executed in 1998 with his wife. His daughter, Bronwyn Benoist Parker, alleged that William, B.D.’s son and Bronwyn’s brother, had unduly influenced their father, who was suffering from dementia and drug addiction, into making the new will. The new will included a forfeiture clause that revoked benefits to any named beneficiary who contested the will. Bronwyn lost the will contest and her benefits under the new will were revoked by the trial court. Bronwyn appealed.
Under the terms of the forfeiture clause in the 2010 will, Bronwyn was denied any benefits under the will and ordered to pay all attorney fees and court costs associated with the will contest. However, the chancellor never determined whether Bronwyn’s suit was brought in good faith. Because she lost, the forfeiture provision automatically cut her out of the will. The Supreme Court found that such a provision is unconstitutional under Mississippi’s Constitution, void as against public policy, and fundamentally inequitable. While this is an issue of first impression in Mississippi, other courts have held that forfeiture clauses in wills are unenforceable when a will contest is brought in good faith and based upon probable cause. A forfeiture clause that operates regardless of a party’s good faith in bringing suit to ascertain the validity of a will frustrates the fundamental purpose of a court, which is to determine whether a will is valid or not. Without a good-faith exception to forfeiture clauses, the testator’s will would frustrate the very object of equity. And, a forfeiture provision that acts regardless of a will contestant’s good faith would frustrate the right of that citizen to access the courts and have a court determine whether he was injured and whether he is entitled to a remedy. The determination of good faith and probable cause should be determined from the totality of the circumstances.
Bronwyn argued that her contest was based on good faith and probable cause. Bronwyn’s claim was based upon the fact that she understood her parents’ intentions in the mutual reciprocal wills from 1998 to be that she and her brother “share and share alike.” It cannot be disputed that those were the wishes of her mother, Mary, who died shortly after her will was executed. At least until 2010, Bronwyn was under the impression that the estate would be divided according to the 1998 will. Further, she testified about B.D.’s failing mental and physical health toward the end of his life, and even William testified about B.D.’s alcoholism and use of strong prescription pain killers. Further, large withdrawals were made from B.D.’s trust account and his private Merrill Lynch account, which were sent directly to William. B.D. also conveyed a large portion of his real estate to William around the time the 2010 will was executed. Bronwyn understandably was worried about these inter vivos gifts. Thus, Bronwyn’s will contest was brought in good faith and was founded on probable cause. Based on the totality of the circumstances, Bronwyn had a reasonable expectation that her will contest would be successful and has provided significant evidence that she instituted the contest in good faith. Thus, the judgment was reversed and rendered in favor of Bronwyn on the forfeiture clause issue.
PARKER v. BENOIST, NO. 2012-CA-02010-SCT http://courts.ms.gov/Images/Opinions/CO96962.pdf
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