07/25/2017










Should You Implement a No-Contest Clause in Your Will?

Estate Planning Attorney Explains the No-Contest Clause in Wills per New York Laws

No-Contest ClauseIf you think that your beneficiaries will argue about your will, or that they may contest your will in court, there are ways to prevent disagreements among surviving family members. A no-contest clause in your estate plan may stop bickering among beneficiaries, and ensure that the family does not lose its connection due to disagreements over inheritance.

No-contest clauses ensure that anyone who raises a dispute ends up not receiving an inheritance. You may wonder how a no-contest clause applies if someone contests the will in court. It is best to speak with an estate planning attorney to explore your options, especially if you think that there is a high risk of someone contesting your will.

How a Will is Contested in New York

A will is designed to communicate your last wishes to loved ones. It also addresses the distribution of your assets. If you have created a living trust through your estate planning attorney, you may have assets in that trust that benefit you while you are living, and then the assets transfer to beneficiaries upon your death.

But, what happens if a beneficiary wants to contest your estate plan?

To contest a will, your beneficiary must file a legal complaint against your will’s validity. There must be grounds for contesting the will, other than just disagreeing with the terms. The individual must also have a financial interest in the estate, such as a family member or beneficiary.

There are specific grounds that a beneficiary or family member must address if the will is contested, including:

  • Focusing on the testator’s capacity. A beneficiary may feel that his or her loved one was not mentally capable of creating or consenting to a will; therefore, the will is not valid.
  • External forces influenced the testator, such as undue influence from an attorney, fraud, or duress from a family member.
  • Newer version of the estate plan. There may be a newer or updated version that was not filed with the courts; therefore, a family member may have that newer version in possession and wish to contest the version submitted to probate.

Family members may also challenge the validity of a trust, especially if they feel that the trust does not reflect their loved one’s wishes or if they believe that their loved one was forced to consent to that trust.

How a No-Contest Clause Works

These clauses may deter beneficiaries from fighting over an estate plan. If, however, there were true errors in the estate plan, family members could not contest it because they risk their inheritance. So, that is a big drawback to consider.

Not all states allow the use of a no-contest clause and some probate courts will not recognize them. New York does recognize the no-contest clause, and they are given full effect when a beneficiary challenges the will. In fact, the statute defines the no-contest clause as a method to prevent disposition from occurring. However, there are exceptions to the no-contest clause, and a probate court judge may accept a contest despite the clause’s presence in the will.

Speak with an Estate Planning Attorney in Long Island

Protect your loved ones from bickering over your estate by drafting a considerate and iron-clad estate plan. Working with an attorney increases the chances that your will is accepted by the courts, and may decrease the likelihood of a contest later.

Contact the Law Office of Andrew M. Lamkin, P.C. today for a consultation by calling 516-605-0625 or request more information online.




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