No contest clause at issue in singer James Brown's will

Many California music fans remember singer James Brown, the "Godfather of Soul," who died nine years ago. Unfortunately, litigation over his estate remains ongoing. Recently, four of Brown's six children reached a settlement agreement, which has been submitted to a court in South Carolina for approval. But two of Brown's son's oppose the settlement and claim that, by challenging their father's will, the other siblings have forfeited their rights to any inheritance.

The four children in favor of the settlement challenged the will on grounds of undue influence. Under the proposed settlement, they would each receive their original bequests under the will, as well as payments of $147,000 each. Each of these four sibling's children would also receive $1,000. The two sons who want the terms of the will enforced as written would get nothing under the settlement. In opposing the settlement, they argue that a no contest clause in the will invalidates any of the challengers' rights under the will. The judge has said he will issue a ruling soon.

A no contest clause is one that penalizes a beneficiary for challenging a will or trust. In California, no contest clauses - sometimes referred to as in terrorem clauses - are enforceable only in limited circumstances. They can be enforced if a beneficiary brings a "direct contest" without probable cause. A direct contest is defined as one based on specific grounds including fraud, undue influence, improper execution, forgery, revocation or lack of testamentary capacity.

A no contest clause can also be enforced, even if the challenger has probable cause, against a claim that property transferred in the will or trust was not the property of the decedent, and against a claim by an alleged creditor of the estate. In these two situations, the no contest clause will be enforceable only if the will or trust makes the clause specifically enforceable against these types of claims.

Source:, "James Brown son Daryl against Estate settlement," Christie Ethridge, Jan. 15, 2016

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