A New York Estate Lawyer is familiar with the various provisions of the Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) that impact estate planning. One of the provisions of the law that has caused much controversy over the years concerns the commonly known “no contest clause”. Section 3-3.5 of the EPTL contains the authority and rules regarding these clauses. While the statute allows the use of this limiting language in a Will, the statute also provides some limitations. For example, EPTL 3-3.5 states that the contest provision is not breached when an infant or incompetent opposes probate. Thus, such individuals do not forfeit their inheritance under the Will. The statute also allows pre-objection discovery under SCPA 1404 as to the witnesses to the Will, the Will’s preparer, the nominated executor and the proponent without resulting in any loss of beneficiary status under the Will.
In many instances the language of a no-contest clause in a Will may be unclear as to the extent of the conduct resulting in a forfeiture. An interesting example requiring interpretation of such a clause was presented in Matter of Prevratil decided by the Appellate Division 3rd Dept. on July 24, 2014. In Prevratil, a disinherited son filed objections to the probate of a 2011 Will that had made no provision for him. The son had been the sole beneficiary to an earlier 2006 Will. The 2011 Will contained a no contest clause. Since the named executor of the 2011 Will initially refused to petition for its probate, the beneficiaries filed a petition for probate seeking letters of administration. The disinherited son asserted that the actions by the beneficiaries to have an administrator appointed circumvented the 2011 Will’s named executors and, therefore, amounted to a contest of the Will resulting in their forfeiture of their Will bequests. Continue reading →