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No Contest Clause Was Not Triggered by Offering Will for Probate or Questioning Actions of Named Executor(s)

The Third Department, in a full-fledged opinion by Justice Peters, over a dissent, determined that a no contest clause in a will was not triggered by offering the will for probate and was not triggered by questioning the actions of the named executors.  The beneficiary of a 2006 will, who had been excluded from the 2011 will, sought to probate the 2006 will.  The petitioners then sought probate of the 2011 will when the executors failed to do so. The beneficiary of the 2006 will argued that the no contest clause in the 2011 will had thereby been triggered:

While enforceable, no contest clauses are disfavored and must be strictly construed … . The no contest provision at issue provides for revocation of a beneficiary’s interest if the beneficiary “contest[s] the probate or validity of [the] Will or any provision thereof, or . . . institute[s] . . . any proceeding to . . . prevent any provision [of the Will] from being carried out in accordance with its terms.” Here, petitioners did not contest the validity of the will or any of its provisions by seeking to admit the will to probate … . Rather, given that [the beneficiary of the 2006 will who had been excluded as a beneficiary from the 2011 will] had already offered the 2006 will for probate nearly two months earlier, they reasonably undertook to probate the 2011 will themselves after the nominated executor and successor executor thereunder failed to do so.

To the extent that petitioners sought letters of administration, we cannot conclude that, by including the no contest clause in his will, decedent intended to preclude a beneficiary from challenging or otherwise questioning the conduct of a fiduciary. Matter of Prevratil, 2014 NY Slip Op 05478, 3rd Dept 7-24-14

 

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