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

Last Will and Testament

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 jurisditions 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 [link to Contact Us page] or call us at 631-425-7299 or 24/7 at 855-479-4700) to set up a free initial consultation.