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James J. Costello, Jr.
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James J. Costello, Jr.
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Beneficiaries Should Exercise Caution Before Filing a Caveat

Filing a Caveat - No Contest Clause in Will

Outside the legal setting, “caveat” generally means a warning or caution. As addressed in our previous blog post, “It May Be Up To You To Prevent Exploitation,” it is also a simple and effective way to prevent a Will from being probated. However, a recent decision by the Appellate Division of the New Jersey Superior Court (In the Matter of the Estate of Rost, Docket No. A-1807-19) highlights the need for beneficiaries to proceed with caution before filing a Caveat.

Beneficiaries Should Exercise Caution

Wills of New Jersey decedents are generally probated through County Surrogate Courts. Probate is simply the process by which a Will is proven to be a valid legal document and through which the appointment of the Executor named in the Will (also known as a “Personal Representative”) is certified. New Jersey law provides that a decedent’s Will cannot be probated any earlier than 10 days after his or her death. Within that time, or any time before the Will is probated, a Caveat can be filed with the Surrogate. A Caveat is a simple signed statement (usually just one or two lines) stating that someone contests the probate of a Will. It does not need to state a reason. Once it is filed, the Will cannot be probated by the Surrogate. Instead, the proponent of the Will (typically the named Executor) must file an action in Superior Court to have the Will admitted to probate.

In Rost, a beneficiary filed a Caveat six days after the decedent’s death without ever having seen the Will. Unbeknownst to the beneficiary, the Will contained a “No-Contest” or “In Terrorem” clause providing that if any beneficiary contested the Will, that beneficiary’s inheritance would effectively be revoked. No Contest clauses were addressed in another previous blog post, “No-Contest Clause, No Problem?” New Jersey law generally provides that such clauses are not enforceable if probable cause exists for the contest. While there is very little guidance as to precisely what “probable cause” means in this context, the court determined that the contesting beneficiary in Rost offered absolutely no evidence to support their claim, and therefore, probable clause did not exist for the contest.

Filing a Caveat

The beneficiary argued that even if the probable cause threshold had not been met, the mere act of filing a Caveat is not a “contest” of the Will. The Court disagreed and upheld the No Contest clause, meaning that the beneficiary forfeited whatever they would have been entitled to under the terms of the Will.

While filing a Caveat is a simple and effective way to prevent a Will from being probated with the Surrogate Court, all putative Caveators should heed the Court’s holding that the filing of a Caveat is a “contest” for purposes of a No Contest clause. Therefore, caution is essential, particularly in cases where the Caveator has not seen the Will that is to be offered for probate or if the basis for a contest may be tenuous.

If you have any questions about this post or any estate planning and administration matters, please contact me at jjcostellojr@norris-law.com.

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James J. Costello, Jr.
Member
James J. Costello, Jr.
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No-Contest Clause, No Problem?
How Do I Contest A Will?
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