No contest clauses in New York wills are valid under New York law.
What is a “no contest” clause in a will?
A “no contest” or “in terrorem” clause in a will basically says that anyone that contests the will is cut out of the will. The purpose behind a no contest clause is to dissuade a possible litigant from contesting the validity of the will. A potential challenger will risk losing everything under the will if they bring an unsuccessful challenge.
Many states find no contest clauses against public policy and do not enforce no contest clauses in wills.
New York Law
New York Estates, Powers and Trusts Law Section 3-3.5 governs no contest clauses.
Basically, section 3-3.5 states that:
- No contest clauses are valid
- The testator does not have to provide for an alternative gift to take effect
- The no contest clause is valid whether or not there is probable cause for a will contest
- An infant or incompetent can oppose the probate of a will and not be subject to the no contest clause (meaning they can challenge and not forfeit any benefit under the will if they lose)
- An objection to the jurisdiction of the court where the will is being probated does not result in the forfeit of any benefit under the will
- The disclosure to any of the parties or to the court of any information related to the will, or relevant to the probate proceeding, does not result in the forfeit of any benefit under the will.
- Refusal or failure to join in a petition for probate of the will, or execute a consent to or waiver of notice of a probate proceeding does not result in the forfeit of any benefit under the will.
- The preliminary examination, under SCPA 1404, of a proponent’s witnesses, the drafter of the will, the nominated executors, and the proponents in a probate proceeding, and, upon application to the court based upon special circumstances, any person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will, does not result in the forfeit of any benefit under the will.
- Instituting or joining in any proceeding for the construction of a will or its provisions does not result in the forfeit of any benefit under the will.
Are There Situations Where No Contest Clauses Do Not Apply?
Yes. No contest clauses in New York wills do not operate to bar every will challenge. For example, if a will was superseded by a later will, the will can be challenged without activating the no contest clause.
No contest clauses are not enforceable against infants or incompetents.
In addition, no contest clauses cannot be used where disinheritance may lead to a form of coercion. For example, if the will directs that a beneficiary be disinherited for providing documents or evidence relevant to the probate proceeding, or refusing to join in a petition to probate the document as the last will, such clauses are not enforceable.
Why Include a No Contest Clause In a Will?
A non contest clause exists for the purpose of dissuading a person from contesting the will. Therefore, in order for the no contest clause to have its desired effect, the beneficiary must be left enough of a bequest to incentivize them not to challenge the will. Ideally the potential challenger will conclude that a will challenge is not worth the risk of losing the bequest in the will.
