Does New Jersey Enforce No-Contest Clauses in Wills?
People create wills and other estate planning instruments because they want the security of knowing their wishes regarding property distribution will be honored after they are gone. When more than one beneficiary is designated however, a conflict might arise because someone believes that they should have received more than they did under the terms of the will or trust.
A common guard against probate and trust disputes of this type is a no-contest clause. Sometimes called in terrorem or forfeiture clauses, these provisions prevent a beneficiary who challenges a will or trust instrument from recovering assets they otherwise would have collected under that legal instrument. State laws vary on the enforcement of these restrictions.
New Jersey uses a middle-ground approach that is fairly common. Pursuant to N.J.S.A. 3B:3-47, courts will not enforce a no-contest provision as long as the beneficiary challenging the will or trust has probable cause to do so. This means that an heir or trust distributee who has evidence of a potential problem may question the document without forfeiting what they would receive.
If you have a good-faith challenge regarding alleged undue influence, lack of capacity or fraud, you should not hesitate to speak with Attorney Kimberly A. Paton about your concerns. With 40 years of experience in this area, she can assess the facts and advise whether you can initiate a challenge without fear that you will lose your inheritance or trust distribution.
Someone who is drafting a will or trust should understand that while they can include a no-contest clause in their document, they cannot be sure that it will be enforced. A provision of this kind should detail what specific actions trigger possible forfeiture. Conversely, you might also set forth steps a beneficiary questioning a will or trust can take without invoking the clause, such as requesting an accounting.
Of course, you can also reduce the likelihood of a challenge by communicating openly with your loved ones regarding your estate plans and drafting instructions in language that is clear and unambiguous. While significant life changes occur, make sure to update wills, trusts and title documents to account for the new circumstances.
At The Paton Law Firm LLC in Fair Lawn, we handle complex probate and estate planning issues for clients throughout North Jersey. Please call 201-470-4801 or email [email protected] for a free initial consultation.
