No-Contest Clause, No Problem?

One of the most enduring myths about Wills is that if you leave someone $1 (or some other nominal amount) in your Will, that person cannot contest it. Implicit in this reasoning is that the Will also contains a so-called “no-contest” clause, sometimes known by its more sinister label, the “in terrorem” clause, which says that any provisions for someone who contests the Will are revoked. Leaving aside the obvious flaw that losing $1 or some other nominal amount is enough to strike fear (or terror) in the mind of a would-be challenger to a Will, are such clauses enforceable in New Jersey?

This blog has addressed both the valid bases for contesting a Will here and the procedure for doing so here.  In brief, the two most common reasons for contesting a Will in New Jersey are: (1) the person who made the Will lacked “testamentary capacity” and/or (2) the Will was the product of undue influence. Testamentary capacity is a low bar; a person only needs to know roughly what they own and who are the natural objects of their bounty (e.g. close family such as a spouse, children, grandchildren, etc.), and understand that they are making a Will and the legal significance of that act. Undue influence exists where the provisions of a Will reflect the desires of someone other than the person who made the Will, usually due to excessive mental, moral or physical pressure.

Generally, two mechanisms exist to contest a Will.  The filing of a Caveat with the County Surrogate Court before a Will is admitted to probate prevents the Will from being probated until an action is brought in Superior Court.  If a Will has already been admitted to probate, an action to contest it may be brought in Superior Court within four months after probate, or six months if the contestant lives outside of New Jersey.

But what if the Will contains a no-contest clause directing that if anyone contests the Will, that person forfeits whatever amount he or she was otherwise entitled to? Assuming the bequest is significantly more than the mythical $1, should you think twice before contesting? It depends. New Jersey law generally provides that no-contest 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 intent of the legislature is clear - a no-contest clause may be enforced for “nuisance” claims clearly brought without basis in fact or law, while legitimate claims based, for example, on lack of testamentary capacity and/or undue influence, will not subject the contestant to forfeiture of his or her bequest under a no-contest clause, even if the claim is unsuccessful.

New Jersey law conveys clear messages to both beneficiaries and testators (people who make a Will) with respect to no-contest clauses:

1. For beneficiaries: don’t be dissuaded by such a clause if the applicable facts and law provide a legitimate basis for your claim, and

2. For testators: feel free to include such a clause in your Will to discourage baseless claims, but make sure any would-be challenger has more to lose than $1, and know that the clause will not work to discourage legitimate claims.

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