Family members have threatened to sue over a piece of property that two want sold and three do not. It is my fathers property and he is still alive and wants to do everything possible to keep peace after he is gone.
Yes. It is called an In Terrorem clause. It can be challenged but gives you a better chance if Dad has the following in his will knowing a looing problem. I regularly include this in my wills:
FOUR: FAILURE TO LEAVE PROPERTY; WILL CONTEST
A. If I do not leave property through a Bequest in this Will and/or my Living Trust to one or more of the family members whom I have identified above (or their Issue), my failure to do so is intentional and if any interested party seeks to challenge any of the provisions of this Will and/or my Living Trust, such challenging party’s Bequest provided for herein and/or any Bequest left to such challenging party’s Issue, as the case may be, shall be forfeited. Such forfeited Bequest shall be reallocated as provided for herein to all other named Beneficiaries that have not challenged the terms of my Will and/or my Living Trust (if any), as the case may be.
B. Such additional amount due the non-challenging beneficiaries shall be based upon the relative value of assets inherited by a particular Beneficiary in relation to the total value of all assets of my estate. If there is any ambiguity in such allocation, my Personal Representative’s decision shall be conclusive and binding upon all such beneficiaries.
My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.
Its called a no contest clause. They are upheld in California and strictly construed. That said, a Will does not seem the best way to go here. A trust or llc would probably be better and more flexible in meeting your dad's goals. He needs to meet with an estate planning attorney to figure out the best way to go.
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Estate Planning Attorney
No contest clauses are enforceable but should be clear and specific. Your father needs to meet with an estate planning attorney to make a tailored estate plan that will address his specific situation and help ensure his wishes are carried out after he is gone.
Family Law Attorney
Yes it can but the better approach is to have a Revocable Trust drafted to avoid having to probate the Will. Until your father dies, your father can do anything he wants with his property and the family members can't sue while alive. But, you should have an experience attorney draft the Trust to lessen the potential conflicts after your father dies.
Estate Planning Attorney
It must be disheartening for your father to witness family members arguing over whether to sell or not sell his property after his death. He is wise to be thinking about his estate plan in this regard. As Attorneys Benton, James and Schultz have advised you, "no contest" clauses are enforceable in California, but the language must be precise and well drafted. I also agree that a simple will is probably not the best option for your father. He should strongly consider having a trust drafted that will set forth his wishes and protect his property. As Attorney Schultz advises, another option may be an LLC .
Your father should meet with an experienced estate planning attorney to discuss all his options with respect to his estate.
Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.