Many Wills include a provision that provides for the forfeiture of a beneficiary’s rights to receive an inheritance if he or she contests the Will. According to a New Jersey Supreme Court decision that was rendered approximately 40 years ago, a provision in a Will that seeks to penalize a person from contesting the Will is unenforceable if there is probable cause for instituting legal proceedings.
This decision was rendered by the New Jersey Supreme Court in the case of Haynes v. First National State Bank, 87 N.J. 163 (1981).
Despite the Supreme Court’s decision 40 years ago, we still include this type of provision in most Wills that our office prepares because it does deter individuals from filing a meritless claim in Court to contest a Will. If there does not exist probable cause to contest a Will, then that beneficiary will forfeit his or her right to receive an inheritance if the No Contest provision is included in the Will.
Our Courts have upheld this provision in a Will if there does not exist probable cause to contest a Last Will and Testament. In April 2021, the Appellate Division of the New Jersey Superior Court rendered a decision concerning this issue in the case of Estate of Annie Rost; docket number A-1807-19. In the Rost case, Annie’s Will included the No Contest provision, also known as an in terrorem provision. Annie died in September 2018 and her Last Will and Testament provided for distribution of her estate to her four children and a number of charities. Annie’s daughter filed a caveat with the Mercer County Surrogate’s Court, which was considered by the Court as a Will contest.
The Mercer County Superior Court determined that there did not exist probable cause to file the caveat and proceed with litigation in Court concerning the validity of Annie’s Will. The Superior Court determined that the No Contest provision excluded the daughter as a beneficiary and further determined that her share would be provided to the charitable beneficiary, Deborah Hospital Foundation.
Annie’s daughter filed an appeal of this decision to the Appellate Division of the New Jersey Superior Court. On April 8, 2021, the Appellate Division rendered a decision that affirmed the trial court’s decision. The Appellate Division determined that the trial court properly found that the daughter challenged the Will without probable cause and therefore the daughter’s share would be provided to Deborah Hospital Foundation.
Law Office of Donald B. Mark 