If you want to discourage others from challenging your will, you can use an “in terrorem” or “no contest” will clause. Such provisions provide that if someone contests your will or any of its provisions, the person forfeits what they would have received under the will. The idea is to leave a disinherited heir enough money in the will to deter them from making a challenge and risk losing everything.
Previously, we have discussed various types of litigation which are notconsidered to be a challenge to the will. These include making objections to the jurisdiction of the Surrogate’s Court; seeking to depose witnesses regarding the authenticity of a will; and asking for an interpretation of an ambiguous will provision. However, if an heir does challenge the will, at what point in the process does it trigger the no contest clause?
A no contest clause typically states that the interest in the estate is forfeited if a beneficiary “contests” the terms or validity of the will. Courts have frequently interpreted this to mean that the mere act of filing an objection to the will is not enough to trigger a no contest clause. Even the act of participating in pre-trial discovery is insufficient, so long as the heir’s objections are withdrawn prior to being tried in court.
The rationale for this rule is best expressed by Surrogate Slater of Westchester County in a 1932 decision In re Cronin’s Will:
“To the word ‘contest’ in its present setting, I give the meaning of an actual trial of the issues. The filing of objections means that a contest may ensue. It is not a contest of itself. Racing, regattas, polo, wrestling, boxing, athletics—each is a contest in the act itself. Getting ready for these events is a gesture leading up to the real event. The contest is on when the opportunity is given to the contestant to become a winner.”
As a result, generally if objections are filed, and then are either withdrawn or not pursued at trial, the heir would not forfeit his/her inheritance. This may be fine for the heir; however, the estate may still expend time and money addressing the objections, including going through discovery. Courts have noted that a party can avoid this situation by carefully drafting a no contest clause that is triggered by the mere act of filing objections.
Anyone considering a no contest clause, should work with an experienced attorney who can draft the appropriate language to deter heirs from filing objections.
If you are considering contesting a will, consult with qualified counsel in order to accurately assess the possible risks to your inheritance.
To discuss your will, trust or estate planning needs, contact us for a consultation.