Estate, Powers and Trusts, § 3-3.5: Conditions Qualifying Dispositions;  Conditions Against Contest;  Limitations Thereon

When writing wills testators generally have a great deal of flexibility and a great deal of control. You can choose who to leave gifts to and who to leave out of your will. You can also choose what part of your estate to leave each beneficiary. Furthermore, the law allows testators to put conditions on gifts and disinherit any beneficiary who challenges the will. However, while the law gives testators great leeway in the content of their wills, estate law is complex. In order to ensure that your intentions are reflected in the will and that the terms of your will are valid and enforceable, contact an experienced New York estate litigation lawyer.

A conditional testamentary gift is one that requires the beneficiary to do something or refrain from doing something in order to receive the gift. In other words, there are “strings attached” to the gift. In New York conditional gifts are generally valid. This is the case even if the testator does not provide alternative gift in the event that the testator fails to qualify for the conditional gift.

A no-contest or in terrorem clause in a will is a clause that voids a bequest to a particular beneficiary if that beneficiary contests the will. Such a clause is often included in a will in anticipation of a disgruntled beneficiary challenging the validity of the will. While some jurisdictions declare such clauses unenforceable, according to New York Estate, Powers and Trusts, § 3-3.5- Conditions qualifying dispositions; conditions against contest;  limitations thereon, in New York such clauses are indeed enforceable. While will contests are often baseless, filed out of anger or disbelief, there are also cases in which a challenge to a will is based on strong evidence. In New York generally it does not matter. Even if a beneficiary challenges a will based on good evidence, the New York Surrogate’s Court will uphold the clause and require the objector to forfeit his (or her) testamentary gift.

However, as a New York estate litigation attorney will explain, there are exceptions to this general rule.

• Pre-trial testimony. According to the Surrogate’s Procedure Act § 1404, a person who would like to contest a will can obtain documents and to obtain pre-trial testimony of the attorney who drafted the will, from the attesting witnesses, and from the executor without being in danger of disinheritance.
• Infants and incompetents. Infants and incompetents can challenge a will without risk of disinheritance, despite a no-contest clause. An infant is someone who is under the age of 18. An incompetent is someone who has been adjudged to be incapable of managing his or her own affairs.
• Probable cause for forgery or revocation. If there is probable cause that the will is forged or that it was revoked, the objector can file a contest without risk of disinheritance.
• Wrong jurisdiction. If the will contest is based on jurisdiction, the objector does not risk disinheritance.
• Coercion. If the no contest clause is designed to coerce the objector not to produce evidence related to the probate proceeding, then it will not be upheld.

As an estate litigation attorney in New York will explain, there are a variety of valid reasons for including a condition on a testamentary gift or for including a no-contest clause in a will. A condition is typically designed to try to encourage or refrain from behavior. For example, if you want your niece to finish college, you could include a condition that in order for her to receive her testamentary gift she must graduate from college.

The reason for a non-contest clause could be prevent a specific person who you know is likely to challenge the will from doing so. Another possible reason is more general. The testator wants to ensure that his wishes are fulfilled and does not want to risk a successful challenge to his will. It is important to keep in mind that a no-contest clause is not a guarantee.

1. Who may make wills of, and exercise testamentary powers of: Estates, Powers and Trust, § 3-1.1
2. What property may be disposed of by will: Estates, Powers and Trust, § 3-1.2

(a) A condition qualifying a disposition of property is operative despite the failure of the testator to provide for an alternative gift to take effect upon the breach or non-occurrence of such condition.

(b) A condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to the following:

(1) Such a condition is not breached by a contest to establish that the will is a forgery or that it was revoked by a later will, provided that such contest is based on probable cause.

(2) An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit thereunder.

(3) The following conduct, singly or in the aggregate, shall not result in the forfeiture of any benefit under the will:

(A) The assertion of an objection to the jurisdiction of the court in which the will was offered for probate.

(B) The disclosure to any of the parties or to the court of any information relating to any document offered for probate as a last will, or relevant to the probate proceeding.

(C) A refusal or failure to join in a petition for the probate of a document as a last will, or to execute a consent to, or waiver of notice of a probate proceeding.

(D) The preliminary examination, under SCPA 1404 , of a proponent's witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding and, upon application to the court based upon special circumstances, any person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will.

(E) The institution of, or the joining or acquiescence in a proceeding for the construction of a will or any provision thereof.

There are a variety of ways to help ensure that your estate planning goals are met, including the use of conditions in your will. However, there may be options. Contact the estate administration lawyers serving New York at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. We have extensive experience creating complex estate plans as well as representing executors, beneficiaries and other interested parties in will challenges, estate litigation, and estate administration. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.