Sue and John have three children. Although once a close family, they have been estranged from their son, Tim, for the past ten years because of a deteriorating relationship with Tim’s wife, to the point that Sue and John aren’t even able to see their grandchildren anymore. Sue and John were so hurt that when they created their estate plan, they decided to leave Tim out of their Will. They disinherited Tim in their Wills and included a “no contest” clause, also known as an in terrorem clause.
John passed away first and Sue several years later. When Sue’s Will was admitted to probate, Tim learned that he had been disinherited. He was shocked, mad, and vowed to contest the Will. He brought a will contest proceeding and the whole family was brought into lengthy and expensive estate litigation in the Surrogate’s Court.
A No Contest clause sets forth that any person who brings a proceeding to have a Will declared invalid or who contests any part or provisions of the Will shall forfeit their interest in the estate if their challenge fails. In order for this clause to be a deterrent in actuality, some amount must be left to the otherwise disinherited person.
For example, if Tim was left $100,000 but nothing more (i.e. substantially less than his siblings), he would have risked losing the $100,000 by bringing the Will contest proceeding. Instead, in this case, he was left nothing at all in the Will. He had no risk, nothing to lose by bringing the Will contest proceeding.
The key is to determine an amount to leave to the person you wish to disinherit which will deter them from bringing a Will contest proceeding. That will be different for everyone and requires a case-by-case analysis, including review of the overall size of the estate, the financial circumstances of the person being disinherited, and even the family background and emotional history of the situation. A good trusts and estates attorney, like the attorneys at Cona Elder Law, will work with you to determine an appropriate amount.
Our goal as attorneys is to avoid disputes and litigation. Work with a law firm like Cona Elder Law where we guide you toward best-in-class solutions.
Originally published in the April 2023 issue of Long Island Press.
Jennifer B. Cona, Esq. is the Founder and Managing Partner of Cona Elder Law, an award-winning law firm concentrating in the areas of elder law, estate planning, special needs planning, estate administration and litigation, and health care law. The firm has been ranked the #1 Elder Law Firm by Long Island Business News for eight consecutive years. For additional information, visit www.conaelderlaw.com.
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