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Can a “no-contest” clause really prevent estate litigation?

| Jan 31, 2019 | Estate Litigation |

Many people who execute a will in our state have very strong opinions about who should inherit their property. They may even want to go as far as inserting a clause in their will stating that if an heir pursues estate litigation, he or she will be disinherited. However, are such “no-contest” clauses enforceable under state law?

Under New Jersey Statutes, Section 3B:3-47, if a person puts a clause in their will that penalizes an interested person for challenging the will is unenforceable, if the interested person has probable clause to challenge the will. If the interested person does not have probable cause to challenge the will, the “no-contest” clause may be enforced.

Therefore, this statute hinges on what is considered “probable cause” and who is an “interested person.” These are legal terms that take an understanding of statutory and case law in New Jersey to define. An estate planning attorney can provide more information on how these terms are defined for the purpose of enforcing or invalidating a “no contest” clause.

So, while it may seem easy to disinherit a person in order to ensure the terms of one’s will are carried out per one’s exact wishes, it is not always the case that this will be accomplished through a “no contest” clause. In general, people should not lose their entire inheritance simply because they disagree with part of the will. It is for this reason that courts may choose not to enforce a “no contest” clause, if the interested person has probable cause for challenging part or all of the will.