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When there is a no contest clause in a will, can you challenge the competency of the executor, or is that contesting the will?

Clarksville, TX |

My mother recently passed away, and so far the only will we can find lists my Step Father as the Executor. She also added a "No Contest Clause" to her will. However, I do not feel that my Step Dad is mentally COMPETENT to be the Executor. Is there any way to challenge his compentency, or does that fall under "contesting the will?"

Attorney Answers 4


  1. I'm not admitted to practice in Texas, but in most states, "no contest" clauses are applied very strictly and narrowly. They are intended to dissuade dissappointed beneficiaries/next of kin from challenging the dispositve provisions of the Will. Here, though, you have a legitimate concern whether your step-father has the mental capacity to properly administer the estate. I don't think that challenging his competency will trgger the no-contest prohibition, but you really need to obtain legal representation from an attorney experienced in probate litigation. It is usually difficult to remove a named beneficiary but it sounds like you may have grounds here. An attorney will be able to present your case to the court in a proper fashion and defend your claims against any response by your stepfather's/estates attorney. Do not attempt this on your own. Please accept my sympathies on your loss, and best wishes for a satisfactory resolution of your situation.

    This response contemplates only the laws of Ohio and is not intended to apply to other jurisdictions. None of the information in this response should be used or relied upon as legal advice or legal opinion about specific matters, facts, situations or issues. Viewing it does not establish an attorney-client relationship between you and Sherrille D. Akin, the law firm of Isaac, Brant, Ledman & Teetor LLP, or any of its individual attorneys


  2. This in terrrorem clause has nothing to do with challenging the competency of the executor.

    Get an estates litigation attorney immediately. You may need to bring an action for removal for cause. For removal for cause, please see my article entitled Pennsylvania Probate: Removal of Personal Representative Under PA Estates and Fiduciary Code at the following link: http://www.sjfpc.com/Probate_Removal_Executor_Trustee_PA_Probate_law.html Even though this relates to PA law most states have similar rules.

    Hope this helps.

    Please remember to designate a best answer to your question.

    Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is

    LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.


  3. I am sorry for your loss. In Texas, the no contest clause (aka: "in terrorem" clause) pertains to the inheritance rights of a beneficiary under the will (Section 10C of the Texas Probate Code). Interested parties should certainly bring to the Court's attention that a person nominated under a decedent's Will to serve as executor lacks the capacity to serve as such. Under the Texas Probate Code Section 78, the Court will not appoint an executor if the Court finds that the nominated person is an incapacitated person (78a) or if the Court finds the person to be "unsuitable" for some reason (78e). If the nominated executor is not appointed due to lack of capacity, then a successor executor is appointed, either under the terms of the Will, or if none, then as the Court decides. A successor executor or beneficiary under the Will, can file an Application to Probate the Will and further explain to the Court who qualifies and does not qualify to be appointed and why. An experienced probate attorney in the county where your mother died would be able to help you in this journey. I wish you the very best of luck.

    Please do not forget to mark the "best" answer.


  4. It is important to note at the outset that the Texas Probate Code provides procedures for challenging the appointment of an executor based on his qualification to act as such. Texas case law also provides that an otherwise valid "no-contest" clause will be strictly construed. As such, at least one appellate court has held that challenging the qualification of a designated executor does NOT constitute a challenge of the type to invoke a no-contest clause. See Estate of Newbill, 781 S.W.2d 727 (Tex. App.-Amarillo 1989, no writ). That court noted that "[t]o hold otherwise would be inconsistent with the obvious intent of the law to make sure that an applicant is properly qualified to execute the fiduciary relationship necessary in the administration of a decedent's estate." 781 S.W.2d at 729. However, there may be other facts in that case that may be distinguishable from your situation, and the legal authority of that particular case may not extend to your appellate district in Texas.

    As such, I recommend that you have a lawyer experienced in estates and trusts law in the county where the probate is pending assess the situation to see if this case would be applicable and to see if you have grounds to contest the appointment. If you are successful, the legal fees you spend to ensure that a qualified executor is appointment MAY be payable from the estate as a whole (rather than from you alone).

    NOTICE: The foregoing is provided for general informational purposes only and is not intended to create, and should not be construed as creating, an attorney-client relationship. Legal advice should always be obtained from an independent licensed attorney in your jurisdiction after there has been a full disclosure and consideration of the relevant facts pertaining to your situation. That said, you should never provide information you intend to be confidential or privileged on a forum such as this. Furthermore, any U.S. tax information provided above is not intended to be used, and may not be used, for the purpose of avoiding penalties imposed under the U.S. Internal Revenue Code or for promoting, marketing, or recommending any portion of this communication to any party.

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