§ 330 CONSTRUCTION

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 330 Construction

Once a court determines that a will is valid, it must then begin the task of determining the testator's intent. Of course, when the will's language clearly and specifically expresses the testator's intent, the court's job is easy. However, in other cases, the courts must attempt to construe the will, using appropriate rules of construction and evidence. Because almost all decisions involving wills are fact-specific, precedent is of relatively little help in construction cases.¹³⁷

§ 330.1 No-contest provisions

A no-contest clause in a will attempts to effect a forfeiture of the beneficiary's devise if the beneficiary contests the validity of the will. SCPC section 3-905 recognizes the validity of no-contest clauses, but includes an exception that may often swallow the general rule: the no-contest clause is unenforceable against the contesting beneficiary if probable cause exists for the contest.¹³⁸

Section 62-3-905. Penalty clause for contest.

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Pre-SCPC common law provided similarly.¹³⁹

Although courts are generally loath to enforce a forfeiture provision,¹⁴⁰ no-contest clauses can be upheld. Thus, the beneficiary considering a contest must consider the possibility of losing the devise under the will. One strategic option may be to first ask the court for a declaratory judgment that the proposed action by the beneficiary will not trigger the forfeiture clause. If the court rules that the action will not,¹⁴¹ the beneficiary can then bring the action without fear of forfeiture. If the court rules that the action will, then at least the beneficiary will be certain of the consequences of the action if brought and unsuccessful.¹⁴²

Despite any general loathing for a forfeiture provision, the South Carolina Supreme Court enforced a no-contest clause in a recent case. In Russell v. Wachovia Bank, N.A.,¹⁴³ two children of a federal Court of Appeals judge alleged undue influence in the creation of his will and revocable trust disposing of his estate of $33 million. A previous decision, Russell v. Wachovia Bank, N.A.,¹⁴⁴finding no undue influence, upheld the will and trust. The testator's grandchildren, whose mother was one of the children alleging undue influence, were significant beneficiaries under the testator's estate plan and...