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Court Discusses No Contest Clauses in Wills


A will executor petitioned in Court to probate the will and the recovery of property alleged asset of the estate. The examinations of the attorney-draftsman, the nominated executor and the attesting witnesses have been completed. Respondents are children of the deceased and grandchildren from a predeceased son.

In support of the motion which seeks a stay of this proceeding pending a construction of the will offered for validation, the petitioners allege that the no-contest clause violates public policy. An issue as to whether a provision of the last will and testament violates public policy must be resolved by construction of the will to determine the person who made the will’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to define a will before its admission to validation. That branch of the motion is denied.

The respondents also seek an order permitting the deposition of the nominated successor executor and the attorney-draftsman of a prior will. In opposition, the petitioner argues that respondents are attempting to avoid the no-contest clause by obtaining a court order directing discovery.

No-contest clauses, while valid and enforceable, are not favored by the court and will be strictly analyze. A New York Probate Lawyer said that the law provides that the preliminary examination of the attesting witnesses, the person who drafted the will, the nominated executors and the proponents in a validation proceeding will not result in the forfeiture of any benefit under the will. Neither the nominated successor executor nor the drafter of a prior will of the person who made the will are among those within the so-called statutory safe harbor of persons who may be deposed without fear of triggering a no-contest clause.

However, the Court of Appeals has recently held that the safe harbor provisions of the law are not exhaustive, apparently opening the door to permit any number of depositions outside the confines of the law which would previously have been considered in-violation of a no-contest clause.

The deceased person’s will and lifetime trust substantially favored the daughter over the son. The will contained two no-contest clauses, one aimed specifically at the son, and the other at any beneficiary. The second of the two clauses provided that if any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the validity of the Will or the revocable trust agreement created, or any part of the property plan or any gifts made, or any of the provisions of the Will or of the revocable trust agreement created, in any court; or if any beneficiary commence or prosecute any legal proceeding of any kind in any court to set aside the Will or the revocable trust agreement created or any part of the property plan or any gifts made; then in that event, such beneficiary and all of such beneficiary’s issue, shall forfeit and cease to have any right or interest whatsoever under the Will or under the revocable trust agreement created, or in any portion of the property; and in such event, it is hereby directed that the property and the trust property under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased without issue.

The son, without ever filing objections, noticed for deposition an attorney who had drafted several prior wills for the deceased, but not the one offered for validation. Brooklyn Probate Lawyers said that despite an admonition from the daughter/proponent’s attorney that conducting such a deposition could result in the forfeiture of the son’s bequest, he insisted the deposition go forward. After learning at the deposition that the deceased person’s immediate prior will also contain a no-contest clause, he indicated that he would not object to the will’s admission to validate. After the will was admitted to validation, the daughter brought a construction proceeding for a determination whether or not her brother’s conduct violated the no-contest clause, thus resulting in forfeiture. It is noted that an attorney who prepared a prior will of the deceased is not identified as a person whose deposition may be taken without fear of triggering the no-contest clause and held that. by conducting the deposition, the son violated the no-contest clause and forfeited his bequest. A four-judge panel of the Appellate Division, Second Department, affirmed.

After granting leave to appeal, a unanimous Court of Appeals reversed the order of the Appellate Division and held that the son’s conduct did not violate the no-contest clause. The Court stated that both the purpose of person who made the no-contest clause and the general public policy were satisfied, since the son’s investigation led him to the conclusion that there was no basis upon which to file objections or to contest the will. A broader construction of these clauses as manifesting the intent to disqualify the examination of the witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information — even as to the medical or psychological condition of the person who made the will at the time the will was executed. Interpreting the clauses narrowly will allow the Court to address on a case-by-case basis whether the conduct undertaken is in keeping with the deceased person’s intent.

Bronx Probate Lawyers said that since the court must, of course, follow the holdings of the Court of Appeals, the branches of the motion seeking the depositions of the nominated successor executor and the drafter of the deceased person’s prior will are granted. However, since this court is also constrained to follow the holdings of the Appellate Division, there can be no determination by this court prior to the will’s admission to validate whether the conducting of these examinations violates the no-contest clause in the will. Thus, while the motion to conduct the examinations is granted, the respondents will conduct them at their own liability.

The respondents also seek to stay the validation proceeding pending a determination in a related discovery proceeding pending in court wherein the preliminary executor is seeking the turnover of at least $19.5 million from the respondent’s closely-held family corporation. The moving papers indicate that 40 percent of the residuary property passes under her will to 18 grandchildren, 6 of whom are minors. The aforementioned no-contest clause contains a provision whereby if any beneficiary, or any beneficiary’s parent, directly or indirectly objects to the admission to validate the will such beneficiary’s legacy under the will is forfeited. If the no-contest clause is valid, the decision by one of the children to object to the will could have severe repercussions for the objecting person’s own child or children, especially if the discovery proceeding is successful and the residuary property is enhanced by nearly $20 million. The preliminary executor has failed to show any substantial prejudice to the property by the court’s granting of the application. However, granting a stay of the proceeding, as sought by the respondents, would effectively stay the examinations discussed above. Therefore, the application is granted to the extent that the respondent’s objections to the propounded instrument, if any, shall be filed within 30 days of this court’s determination of the discovery proceeding, or until further order of the court.

Each of us intends to protect what we worked hard for so our family can benefit from them. In the event that we have to assign someone to facilitate its distribution, things sometimes go wrong. If you find yourselves in this situation, make sure to consult with Stephen Bilkis and Associates.

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