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How may I challenge a will with a no-contest clause?

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Dec 2, 2020 |

A will’s no-contest clause may lead you to reconsider challenging the terms that you believe left you unfairly disinherited. Originally referred to as “in terrorem” clauses — because of their intent to “instill terror” in anyone considering a challenge — they may not always prove enforceable.

A no-contest clause stipulates that beneficiaries attempting to challenge a will forfeit their inheritance. In that respect, these clauses are also called “forfeiture” clauses, as described by WealthManagement.com. This does not mean, however, that a will with a no-contest clause is beyond dispute. New Jersey law may allow you to challenge a will containing a no-contest clause if you have probable cause.

Proving a lack of testamentary capacity

One of the ways you may show probable cause and overcome a no-contest clause is proving that the deceased lacked testamentary capacity. This means the testator was lacking in his or her mental capacity when the signing of the will took place. You may need to prove that the deceased was suffering from dementia, senility or a form of mental illness that caused the testator to not understand the will’s terms.

Proving undue influence

Undue influence reflects another way you may show probable cause. It refers to someone exerting a coercive influence upon the testator so that the will’s provisions serve the manipulative individual’s aims instead of the deceased’s. The undue influence may come from a family member acting as a caretaker for the decedent or someone with the ability to wield physical or emotional pressure.

When the terms of a will cause you to dispute its provisions, your concerns may prove valid, but your emotional response to the death of a loved one may affect your outlook. Before proceeding with litigation, it may prove helpful to sort out your feelings and review your options carefully.