A no-contest or in-terrorem clause in a New York will states that a person who challenges the will is prevented from inheriting under the will. No-contest clauses work extremely well, but they still have some vulnerabilities and limitations:
- A considerable amount needs to be left to the person who you think will contest a will, otherwise, there will be no incentive not to contest. You cannot expect the objectant to hold off challenging a will in a million-dollar estate for fear of losing a thousand dollars.
- New York law allows limited investigation of the circumstances of the making of the will without triggering a no-contest clause. The contestant will be able to examine the witnesses to the will and the attorney-draftsman of the will without triggering the no-contest clause. The contestant may also possibly obtain some documentary evidence before triggering the no-contest clause (consult with your attorney).
- If the challenger wishes to contest the will anyway and succeeds, the no-contest clause dies together with the will.
If you are making a Will that you think will be challenged, it is important not to rely on the no-contest clause alone. Do not ignore the other ways of making sure your New York will survives a contest.
If you are challenging a will that has a no-contest clause, be careful not to trigger it. Follow the advice of your estate lawyer, and make sure that your estate lawyer knows the law and the facts and does research as needed, and does not come even close to triggering the no-contest clause. The law usually allows a potential objecting to examine the attesting witnesses to the will and the attorney-draftsman before filing objections, and may allow some discovery (consult with your attorney). When in doubt, your attorney may have to bring a motion to have the court decide whether new action will trigger the no-contest clause, but has to research your particular situation and make sure that the motion itself will not trigger the no-contest clause.
If you are defending a will that has a no-contest clause, you would have to decide if there is a point at which the potential objections have violated the no-contest clause, and possibly present a motion to the court to invalidate the potential objectants’ share in the estate.
Albert Goodwin, Esq. is a New York City estate attorney, who has experience drafting, defending and prosecuting will contest clauses. He can be reached at (212) 233-1233 or (718) 509-9774.