When someone executes a will, they do so because they want to ensure that their assets are distributed according to their wishes. For many such people, one concern they have is that their will may be challenged in court when it reaches probate, resulting in in-fighting among their beneficiaries. In hopes of preventing this, they include a no-contest clause – but will it work?
What is a no-contest clause?
The purpose of including a no-contest clause is to limit challenges to a will or to prevent them entirely. It does so by placing a condition upon the will’s named beneficiaries. The clause states something to the effect of, should a beneficiary bring a challenge to the will, they will automatically be disinherited from that will.
The potential challenger is thus placed in a difficult position – they may disagree with the contents of the will or the way in which it was executed but, if they raise their voice to object, they risk losing everything they stood to gain from the will in the first place.
Is the clause effective?
It would be inaccurate to say that New York favors no-contest clauses – on the contrary, New York courts will strictly construe them, limiting their effect when it makes sense to do so. But if the clause is well-drafted, the courts will uphold them and execute the testator’s intentions. So the danger remains for the potential challenger.
But a no-contest clause is also not without risk for the testator. New York names a number of circumstances under which aspects of the will, or its execution, can be examined without running afoul of the no-contest provision. As such, its very existence can open avenues of litigation that would not exist in its absence.
Both a testator and a potential challenger should tread lightly around no-contest clauses, including them or confronting them only with the advice of a professional who is experienced in New York Estate Planning and Probate Law.