Many clients want to avoid challenges to their Last Will and Trust. They are generally concerned about some family member who is “all about the money”. They’re thinking their Will should include a no-contest clause to protect their good kids from greedy or unstable siblings, other children, etc. Perhaps over the years there’s been hints that assets in the family really came from other donors, etc. Parents envision others going after what he/she thinks is theirs and making the lives of beneficiaries miserable after the person is gone.
Unfortunately (or fortunately, depending upon your position) a no-contest clause is not enforceable in New Jersey. Also known as an in terrorem clause, it specifies that any interested party who contests an estate plan automatically gets nothing. The clause can be unenforceable whether included in a will or a trust. Even when a no-contest clause is valid, it does not apply to someone who is excluded from an inheritance; it applies only to beneficiaries whose inheritances will be forfeited if they challenge the estate.
One suggestion to reduce the threat of a challenge is to create a trust rather than rely on a will. A private document, a trust does not need to be filed with the probate court. Because it is not public and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning. He/she deals with these kinds of problems all the time and can suggest strategies to minimize the chances of bad people creating problems, or of prevailing if they do.
Contact me personally today to discuss your New Jersey estate planning, Last Will, trust and contest matter. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Will Contest Attorney