Adding A “No-Contest” Clause to Your Will

You may assume that if you have a Will, your estate will be distributed as you directed. Generally, that is the case. But if your Will disinherits a family member, or makes a bequest that other family members disagree with, it is possible for the unhappy family members to bring a “will contest,” which is a lawsuit challenging the validity of your Will. This lawsuit can be brought on many bases, such as lack of mental capacity at the time the Will was executed, or that another person unduly influenced your distribution decisions. If the claim is successful, the court will invalidate your Will, and your assets will not pass in accordance with your wishes.

There is no way to prevent a person from bringing a Will contest. However, if you think your family situation or your estate plan are prime candidates for a Will contest, you can discourage the unhappy family members by including a “no-contest” clause in your Will. A no-contest clause is a provision in a Will that penalizes those who challenge its validity by directing that the challenger’s bequest is forfeited. Historically, no-contest clauses were called in terrorem clauses because they were intended to strike terror in the hearts of anyone who might challenge the will. New Jersey courts will enforce such no-contest clauses when a beneficiary lacks probable cause to challenge a will, meaning the lawsuit was without any basis in fact. N.J. Stat. §§ 3A:2A-32, 3B:3-47; Haynes v. First Nat’l State Bank of New Jersey, 87 N.J. 163, 432 A.2d 890 (1981). New Jersey courts will not enforce a no-contest clause if the lawsuit had a basis in fact, if the lawsuit is to construe the terms of the Will, or if the lawsuit is to determine the appropriateness of a fiduciary action.

The best way to discourage a baseless Will contest is by ensuring that the no-contest clause in your Will is clear as to your intent, and, if there is a likely candidate to bring the Will contest, going so far as to name that person directly in the clause. You may not be able to control other people’s actions from the grave, but you can make the consequences of their actions as unappealing as possible for some extra insurance that your estate plan will be followed as you intended.

Melanie M. Levan is a shareholder at Posternock Apell, PC. She concentrates her practice in estate planning and administration, collections, commercial real estate, and land use.