There are many different types of provisions that can be written in a Last Will and Testament. The most common terms include bequests to named beneficiaries and other clauses that provide for the disposition of assets. Also, the Will should name Executors and Trustees as well as proposed Guardians if minors are possible beneficiaries in an estate plan.
One of the more common provisions that is found in a Will is known as a “No-Contest” clause. This language is also referred to as an “In Terrorem” clause. The Estates, Powers and Trusts law provides the rules concerning this type of language in section 3-3.5 entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”. Essentially, this direction in a Will sets forth that any beneficiary who may contest the Will is to lose all rights to receive any benefits provided in the Will. Thus, if a person were to receive a $1,000.00 bequest in the Will but unsuccessfully challenges the validity of the document, he would forefeit his right to receive the $1,000.00. No-Contest clauses can be the source of estate litigation in the Surrogate’s Court.
The statute allows some exceptions which include discovery under Surrogate’s Court Procedure Act section 1404. Additionally, the prohibition does not apply to an infant or incompetent.