Is my “No Contest” clause fullproof?
You should think carefully before placing a "no contest" or "in terrorem" clause in your Will.
My Will has a “No Contest” clause. Is it fullproof?A “No Contest” or “In Terrorem” clause is often thought of as a way of preventing a challenge to a Will. If properly drafted and used under the right circumstances, a “No Contest” clause can be advantageous and can disincentivize a person from challenging a Will. If improperly drafted or used, a “No Contest” clause can cause more harm than good.
Why is it Important to Think about Whether to insert a “No Contest” Clause?An “in terrorem” clause is not always necessary. If you are leaving your estate to friends or charities, then you may want to avoid the use of “no contest” clauses because friends and charities have limited abilities to contest your Will in the first place.
Similarly, just because you have a “no contest” clause does not mean that nobody can take any steps to question or investigate the Will. In fact, if you have a no contest clause in the Will, the Objectant, pursuant to EPTL 3-3.5, is still able to, among other things:
contest a Will if they have probable cause to believe the Will was forged or later revoked by a subsequent Will.
Argue that the Court lacks jurisdiction;
Seek disclosure of information relating to the propounded last will and testament or any other relevant document;
Refuse to sign a Waiver and Consent;
Examine the witnesses to the Will and the person who prepared the Will, and the nominated executor in the Will, and the proponent of the Will, pursuant to SCPA 1404; or
Engage in a construction proceeding of the Will.
** Note that without an “in terrorem” clause in the Will, an Objectant can only examine the witnesses and the person who prepared the Will. Without the no contest clause the Objectant cannot examine the nominated executor or the petitioner. This can be strategically advantageous to you because you want to expose as few people to pre objection discovery depositions as possible.
What does a No Contest clause in a Will mean?A no contest clause, essentially says: if you contest my will, you get nothing. However, people must be properly incentivized not to contest your Will. This involves an analysis of your estate and the amount you are leaving to the individuals you hope will not contest your will. For example, if you are survived by three children and your estate is worth $5 million, then leaving a child $10,000 and putting in a “no contest” clause will not sufficiently disincentivize that child from not contesting your will. However, perhaps if you like your child $350,000, then, depending on the structure of your assets, perhaps your child will be less motivated to contest and instead, just take the bequest.
How can you Stop Someone from Contesting a Will?There is really no way to stop somebody from contesting a Will. However, you can take steps to mitigate the changes of a Will Contest. Click here to read about preventing a Will Contest. You can also draft defensively, by properly and carefully thinking about whether you should use a “no contest” clause.