Small Law Firms

‘Death By Inches’ With The Denver Broncos

No contest clauses seek to deter disgruntled relatives from challenging wills and trusts in order to avoid expensive and lengthy estate fights.

By Cori A. Robinson on September 18, 2019 3:43 pm

Earlier this year, Denver Broncos Coach Vic Fangio gave his football team the motto: “Death by inches.”  His explanation for its meaning and its choice for the Colorado team that has missed the playoffs for three consecutive seasons is legally infused: “When you see a small misdemeanor crime, that’s an inch crime and you correct it.” Outside the field, perhaps the expression can apply to another aspect of the Denver Broncos: the estate litigation revolving around its deceased owner, Pat Bowlen, and the Denver Broncos franchise which is worth more than $2.5 billion.

Bowlen, who died in June 2019, was survived by seven children and his second wife. His two oldest daughters, Amie Klemmer and Beth Bowlen Wallace, born of his first marriage, claim their father did not have the capacity to sign his estate-planning documents, specifically his trust, in 2009. Bowlen suffered for several years from Alzheimer’s Disease.  Prior to his passing, his trustees controlled his financial affairs and business dealings. The daughters argue that their father lacked the legally required capacity to execute the estate-planning documents in 2009 and was subject to undue influence.

Bowlen’s estate has been riddled in litigation, even prior to his passing. In August, Bill Bowlen’s brother’s lawsuit, that requested the removal of trustees, was dismissed by the Arapahoe County Court. The brother wanted an independent controller appointed, claiming that the three currently serving trustees had conflicts of interest. Related to this issue, the Broncos franchise is in the midst of NFL mediation. The issue is whether the trustees have the authority to decide which of Bowlen’s children can become the new controlling owner of the Broncos. Also before the mediation is whether the Broncos team should be sold. The result of the daughters’ challenge will certainly have an effect on these issues.

The daughters’ claims also raise the issue of a “no contest clause.” This is a provision included in a last will and testament or trust and it is intended to prevent an individual from contesting the terms of the testamentary document after a testator’s death. Generally, the clause states that any beneficiary who challenges the testamentary document (and loses) will not receive anything from the estate. Sometimes the clause also pertains to the children of those who contest. A testator can disinherit a child, but give to a grandchild. A no contest clause might deter a disgruntled parent from contesting because it may result in her children not receiving under the last will. A no contest clause is really only effective for individuals listed in the document or those who would receive under the laws of intestacy. For those who are omitted altogether, they are of little consequence.

Questions often arise in court as to whether certain challenges to a last will or trust trigger a no contest clause. Can disappointed relatives ask questions or request information without effectuating the clause? Often a no contest clause acts as a great deterrent for baseless objections. The provisions are often referred to as in terrorem clauses because they seek to instill terror in the challenging beneficiary. Testators include the clauses often when they make disparate bequests among their children or expect someone to raise an objection. Estate litigation can be very costly for the family members both financially and emotionally.

The Denver Broncos are currently 0-2. It would behoove all parties to resolve the outstanding control issues so that the team, and the estate, do not die by inches.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at [email protected].