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158 Tr. & Est. 15 (2019)
Bulletproofing the Estate Plan

handle is hein.journals/tande158 and id is 589 raw text is: 

58-year-old  female. Those premiums  would,  in turn,
give rise to an additional charitable deduction for the
years they're paid.

Achieving a Balance
This is just one example of how advisors can help clients
continue to make  meaningful charitable gifts for public
benefit after first fulfilling overriding obligations to fam-
ily and others. In upcoming columns, I'll explore other
situations in which careful planning can balance the
desire to fund both intra-family and public philanthropy.

1. wwwpewresearchorg/global/interactives/remittance-flows-by-country/
2. See https://givingusa.org/giving-usa-209-americans-gave-427-71-billion-
3. See wwwmiccom/articles/188381/give-best-gifts-2018-ideas-guide-charity-
4. wwwwashingtonpostcom/news/wonk/wp/2017/12/06/the-richest--per-
5. https.://money.usnews.com/money/blogs/on-retirement/arti-
   cles/7-myths-about-millionaires  wwwcenbccom/2019/05/l0/wealthx-bil-
6. www.usatodaycom/story/money/personalfinance/2016/01/01/winning-the-


Bulletproofing the

Estate Plan

By  Charles  A. Redd,  a partner  at Stinson  LLP
in St. Louis and  a fellow of The  American
College  of Trust and  Estate  Counsel

A beneficiary may be motivated to contest a will or trust
instrument because he believes he has sufficient grounds
to invalidate the document (for example, due to forgery,
lack of proper execution, fraud, incapacity, undue influ-
ence, duress) and stands to gain economically if success-
ful. A successful challenge to the validity of a document
will cause the decedent's estate or trust to pass intestate

or pursuant to an earlier document that wasn't contested
(or wasn't contested successfully).
   In some  instances, a beneficiary may challenge the
validity of only a portion of a document. If the bene-
ficiary is successful, only that provision is eliminated,
and  the remainder of the will or trust instrument con-
tinues in effect. This approach, when  allowed under
applicable state law, can be beneficial if, for example,
there are large pre-residuary bequests or gifts to indi-
viduals and  all or a portion of the remainder  is to
pass to the contestant. Under these circumstances, the
contestant may  have  more  to gain by attacking only
the pre-residuary bequests or gifts. The pre-residuary
bequests  or gifts would  be  eliminated, the residue
would  become  larger and the contestant would receive
more  than he otherwise would  have received.

No Contest Clauses
Most  no contest clauses-sometimes  known  as in ter-
rorem or forfeiture clauses-are intended to discour-
age a contest of a will or trust instrument by removing
the beneficiary who challenges the validity of the appli-
cable instrument. The foundation on which  no contest
clauses rest is the almost universally accepted principle
of American  jurisprudence that, with few exceptions, a
property owner should be able to dispose of his property
in whatever manner  he sees fit.
   The  laws of two states, Florida and Indiana, render
no  contest clauses void.' The  laws  of many  juris-
dictions strictly construe no contest clauses,2 others
don't enforce no contest clauses in cases in which the
contestant had probable cause for instituting a contest
or instituted a contest in good faith3 and still others
simply look to the language of the clause to determine
whether  the action at issue triggers operation of the
   If a testator or settlor has completely removed  a
child or other individual whom  the testator or settlor
believes would challenge the will or trust instrument,
a no contest clause won't serve its purpose. In such a
case, that child or other individual has nothing to lose
by bringing  a challenge. Thus, the use of no contest
clauses is effective only when theres a sizable enough
bequest  or gift to make the target beneficiary think
twice about a challenge.
   A  no contest clause may be designed  to cause not
only the contesting beneficiary to lose his inheritance

1S / TRUSTS & ESTATES / trustsandestates.com / SEPTEMBER 2019

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