“No Contest” Provision in Will May Be Contested

A will contest can be an expensive and time-consuming process. While the will contest is in process, beneficiaries will have no access to estate assets. Unfortunately, will contests can often be used to wrongfully gain leverage against other beneficiaries.  As a consequence, it’s not uncommon for a will to contain a “no contest” or “in terrorem” clause, which typically states that any beneficiary who unsuccessfully challenges the validity of a will automatically forfeits any bequest granted in the will.

That does not mean, however, that a potential estate beneficiary may not challenge the validity of a will. Under the provisions of the Surrogate Court Procedure Act (SPCA), an estate beneficiary has the right to engage in “preliminary discovery,” i.e., to gather initial evidence, to adequately assess whether a will may be successfully challenged. Among the various methods by which a beneficiary can gather evidence to evaluate the potential validity of the will are:

  • Production of written documents
  • Testimony of the attorney who prepared the will, as well as any witnesses who attested to the validity of the will
  • Testimony of named executors or proponents of the will, but only if there is a no contest provision in the will

Furthermore, if there is a no contest clause, the court may grant potential claimants the right to gather any information that may be relevant to the validity of the will. Such information may include evidence regarding the mental capacity of the person executing the will, as well as evidence regarding financial matters. For example, in Matter of Liebowitz, in a ruling issued in February, 2016, the court ruled that allowing beneficiaries to gather evidence from the deceased’s business manage would not invoke the provisions of the will’s no contest clause, provided the evidence was sought to establish or challenge the validity of the will.  Some discovery is allowed. The provision of “no contest” clause does not take effect in most jurisdictions until you file formal Verified Objections.

Successfully settling an estate can be an extremely complicated process, even when there’s no “no contest” provision. Don’t try to handle it on your own. Attorney Bonnie Lawston has the knowledge, skill, experience and resources to protect your interests.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 to set up a free initial consultation.

The Right to Discovery in Probate Litigation

When someone dies with a will in New York State, that person’s estate must generally be “settled” through filings and proceedings overseen by the probate court. Referred to as probate, this process can often be done without the need for litigation. However, when there are issues about which executors and heirs disagree, probate litigation may be the only way to resolve the dispute.

An essential part of the litigation process is what is known as “discovery.” The discovery phase of a trial is that period where all parties seek to obtain (and are usually required to share) all evidence related to the matters in dispute. Discovery can be accomplished in a variety of ways, through depositions, through the production of relevant documents, and through answers to written questions, known as interrogatories. A couple recent opinions handed down by the Surrogates courts have specifically addressed and clarified the rights of discovery in probate contests.

Matter of Shure

In an opinion handed down in early December, 2016, the Manhattan Surrogates Court confirmed that a third party had to disclose information to allow potential estate beneficiaries to determine whether an executor had breached a fiduciary duty. In Matter of Shure, a co-executor asked the Surrogate Court to compel Chase Bank to provide certain information that involved the estate, information that included reference to internal bank procedures. The co-executor cited SCPA (Surrogate’s Court Procedure Act)2103, which allows discovery of documents and testimony to confirm or deny the existence of assets or property that might belong to an estate. The court recognized Chase Bank’s need to maintain confidentiality of its internal policies, so allowed the co-executor access to the information, but required that the parties enter into a confidentiality agreement.

Estate of Melendez

In this opinion, released in November, an executor sought discovery of documents related to the deceased’s purported spouse, who had attempted to exercise a spousal right of election to the estate (see our blog on the right of spousal election in New York). The executor had alleged that the right of election could not be exercised because of the existence of a prenuptial agreement signed by the alleged spouse. The court held that discovery of passport and border crossing records was reasonable.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299  to set up a free initial consultation.