I’m Disinheriting My Son, Daughter & Spouse If You Challenge My Will!

HNW Elder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Estate and Probate Dispute Attorney

Can you include in your will a clause which provides for the revocation of an inheritance if your beneficiary contests the will? The answer is yes and no. Here’s Why, N.J.S.A. § 3B:3-47 states: “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.”

The statute was originally enacted in 1977 and its enforceability has been addressed in a number of cases over the years. The New Jersey Supreme Court addressed the enforcement of these clauses in Haynes v. First Nat’l. State Bank of N.J., 87 N.J. 163 (1981). In this case, the testatrix amended her revocable trust agreement and added a codicil to her will, thereby incorporating the disinheritance clauses into each instrument. The trial judge declared the clauses unenforceable, but the Appellate Division disagreed and enforced the clauses.  The Supreme Court agreed with the trial judge that the plaintiffs in Haynes had proceeded in good faith and on probable cause, such that the in terrorem clauses would not be enforced. In doing so, however, the Supreme Court clarified the impact of the statutory enactments. The Court reviewed the prior decisions on the enforceability of the clauses, and found that the 1977 statute had abolished the distinctions drawn in those prior cases, by “stating quite simply that whenever there is probable cause to contest a will, the clause should not be enforced.”

So if there is probable cause (many a reasonable basis) to contest a will or trust such a clause will be enforced. If not, you’re going to be “cut out” altogether or to the extent the document specifies.

To discuss your NJ Estate Probate Dispute matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

 

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