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Home » Estate Planning » Contested wills and in terrorem clauses explained

Probating a will can be a deeply emotional time for survivors of the deceased. Much of the time, things will go smoothly and the will is executed without fanfare. But sometimes one or more individuals feel the need to contest the will, in whole or in part. What happens if the deceased has included penalties in the will, aimed at those who choose to contest it?

How is a will contested?

When a party decides to contest a will, New Jersey provides two mechanisms to do so. The first is known as a caveat and must be filed early in the process, usually within 10 days of the decedent’s death. Once the will has been probated, however, a caveat is not an option. Instead, the party must bring a formal action objecting to the will. There are important differences in how and when a caveat or an action are brought but, in the end, the effect is the same – the validity of the will must be litigated.

In terrorem clauses

An in terrorem clause is often included in a will to dissuade parties from contesting it. Also known as a no-contest clause, it specifies that, should a beneficiary challenge any part of the will, they will be disinherited of their bequest. However, the effectiveness of an in terrorem clause is usually not as obvious as it may appear at first glance. New Jersey Statute Section 3B:3-47 states that the clause will not be enforced if the party bringing the challenge has probable cause to do so.

So, in operation, in terrorem clauses effectively bar only the most frivolous of challenges. Common reasons to challenge a will include lack of capacity and undue influence – as long as there exists a reasonable basis to believe the challenge is valid, the in terrorem clause is ignored and the challenger won’t be penalized.