No-Contest Clause
No-Contest Clause
A no-contest clause is a testamentary disposition by which the testator explicitly obliges their heir or legatee not to challenge the disposition. Anyone who disregards this loses their benefit. This can be the inheritance, a legacy, or any other advantage. This penalty provision is also called a cassatory clause or penalty clause.
A no-contest clause is a testamentary penalty clause that can lead to the loss of the inheritance share if challenged.
Legal Basis
The legal basis for the no-contest clause can be found in § 712 para. 2 ABGB. It stipulates that a testator can, by testamentary disposition, order that an heir or legatee may not challenge the disposition; otherwise, they lose their benefit.
Such provisions are only effective insofar as they do not merely concern the authenticity, the meaning of the disposition, the interpretation of the penalty clause, unlawful content, or violations of mandatory formal requirements. In these cases, a challenge remains permissible despite the no-contest clause.
Purpose and Function of the No-Contest Clause
A no-contest clause allows the testator to influence the behavior of the beneficiaries. It aims to prevent them from challenging the disposition maliciously or for tactical reasons.
It covers not only judicial contestation but also any form of opposition to the last will, such as delaying the settlement, filing unnecessary appeals, or disputing the interpretation.
Sebastian RiedlmairHarlander & Partner Attorneys „Wer den letzten Willen angreift, riskiert mehr als nur ein Gerichtsverfahren. Im schlimmsten Fall verliert er seinen Anspruch auf das Erbe“
Potential Parties Affected by a No-Contest Clause
The no-contest clause can exclusively be directed against:
- the appointed heir or
- a legatee.
It cannot be effectively imposed against legal heirs who are entitled without a disposition.
Legal Consequences
- In the event of withdrawal of a benefit (e.g., the inheritance share), this constitutes a resolutory condition: The benefit is forfeited if the disposition is challenged.
- If a charge is imposed that only takes effect upon contestation (e.g., payment of an amount), this constitutes a suspensive condition.
The consequence: Anyone who disregards the prohibition loses their advantage and, if applicable, reverts to the forced share.
Exceptions to the No-Contest Clause
A no-contest clause is not effective without limits. Even with an effective provision, the beneficiary may assert the following:
- Doubts about the authenticity or interpretation of the disposition,
- Violations of formal requirements,
- Immoral or unlawful content,
- Rights concerning the forced share
The testator therefore cannot issue a complete prohibition of examination.
Your Benefits with Legal Assistance
A no-contest clause can be strategically useful, but it carries risks – for both testators and beneficiaries. An experienced inheritance law expert examines:
- whether such a provision is effective in the specific case,
- how it must be formulated to be legally sound,
- what effects are to be expected in case of a dispute.
