A no-contest clause, which lawyers also call an in terrorem clause, is a provision in a will that takes away a beneficiary's gift if that beneficiary contests the will. In New York these clauses are enforceable, and the rules sit in one statute: New York Estates, Powers and Trusts Law (EPTL) § 3-3.5. If you were left something under a will that has one of these clauses and you think the will is wrong, that statute decides what you can do without putting your gift at risk.
This guide goes through the text of EPTL § 3-3.5, the conduct the statute protects, and how we think about the decision with a beneficiary before anyone files objections in Surrogate's Court.
Are no-contest clauses enforceable in New York?
Yes. EPTL § 3-3.5(b) makes a condition against contest operative, and it applies whether or not the beneficiary had good reason to bring the contest. The statute says so directly:
"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:"
— New York Estates, Powers and Trusts Law (EPTL) § 3-3.5(b)The words "despite the presence or absence of probable cause" carry the weight. As a general rule, a beneficiary who contests and loses does not keep the gift just because the challenge was reasonable. Probable cause protects a contest only in the narrow situation the statute names in paragraph (b)(1), which we cover below.
Subdivision (a) of the same section deals with a related drafting question. A testator who adds a condition does not have to say where the property goes if the condition is broken:
"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."
— New York Estates, Powers and Trusts Law (EPTL) § 3-3.5(a)In practice, then, a no-contest clause can be enforced even if the will never says who takes the forfeited gift.
What does the statute say a beneficiary can do without forfeiting the gift?
EPTL § 3-3.5(b) lists specific conduct that does not trigger the clause. These safe harbors are the most practical part of the statute, because they let a beneficiary investigate and protect their position before deciding whether to contest.
A forgery or later-will contest based on probable cause
The one contest the statute protects outright is a claim that the will is forged or was revoked by a later will, and only when the claim rests on probable cause.
"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."
— New York Estates, Powers and Trusts Law (EPTL) § 3-3.5(b)(1)Paragraph (b)(1) names two grounds, forgery and revocation by a later will. Other common grounds for objecting to probate, such as undue influence, lack of capacity or improper execution, are not on that list. A beneficiary who brings one of those objections and loses is exposed to the clause even if the objection was reasonable.
Infants and incompetents
The statute gives a separate protection to beneficiaries who are infants or incompetents.
"An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit thereunder."
— New York Estates, Powers and Trusts Law (EPTL) § 3-3.5(b)(2)This paragraph says nothing about probable cause, so it reaches further than (b)(1). It lets those beneficiaries "affirmatively oppose" probate on any ground without losing their gift.
Conduct that is never treated as a contest
Paragraph (b)(3) lists conduct that, "singly or in the aggregate, shall not result in the forfeiture of any benefit under the will". There are five items:
- Objecting to jurisdiction. "The assertion of an objection to the jurisdiction of the court in which the will was offered for probate." (EPTL § 3-3.5(b)(3)(A))
- Sharing information. "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." (EPTL § 3-3.5(b)(3)(B))
- Not signing. "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." (EPTL § 3-3.5(b)(3)(C))
- Pre-objection examinations under SCPA 1404. Questioning the people the statute names before deciding whether to object. (EPTL § 3-3.5(b)(3)(D))
- Construction proceedings. "The institution of, or the joining or acquiescence in a proceeding for the construction of a will or any provision thereof." (EPTL § 3-3.5(b)(3)(E))
Item 3 matters more than people expect. When an executor files for probate, family members are often asked to sign a waiver and consent. Under (b)(3)(C), declining to sign it does not breach a no-contest clause. Refusing to consent is not the same as filing objections.
What is an SCPA 1404 examination, and why does it matter here?
An SCPA 1404 examination is a deposition-style questioning, taken in a probate proceeding, of the people who know how the will was made. Because EPTL § 3-3.5(b)(3)(D) protects these examinations, they are the main way a beneficiary can test a will without forfeiting the gift. The protected group is set out in the statute:
"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."
— New York Estates, Powers and Trusts Law (EPTL) § 3-3.5(b)(3)(D)The Surrogate's Court Procedure Act gives the matching procedural right. Under SCPA 1404(4), "Any party to the proceeding, before or after filing objections to the probate of the will, may examine any or all of the attesting witnesses, the person who prepared the will," and, when the will has a no-contest provision, "the nominated executors in the will and the proponents". The same subdivision says "In all cases the proofs must be reduced to writing."
Cost is a practical point. Under SCPA 1404(5)(a), for examinations conducted before objections are filed, the testator's estate pays for the initial examination of the first two attesting witnesses within the state who are produced by the proponent, plus the stenographer and one copy of the transcripts for the court and any guardians ad litem. The costs of other examinations are "governed by article 31 of the civil practice law and rules", and SCPA 1404(5)(b) applies that same rule to all examinations conducted after objections are filed.
For witnesses outside the group the statute names, the beneficiary has to apply to the court and show "special circumstances". In practice, the attesting witnesses and the drafting attorney are usually the first people we question. Their testimony about how the will was signed and how the testator acted is often enough to decide whether objections are worth the risk.
How should a beneficiary decide whether to object?
Compare what you would lose under the clause with what you would gain if the contest succeeded. The statute sets the risk. Your share under the will and your share without it set the reward.
We usually work through these questions with a beneficiary:
- What do you receive under this will? If the gift conditioned by the clause is small, losing it may be an acceptable risk. If it is large, the bar for objecting is higher.
- What would you receive if this will were denied probate? Work out that number before deciding. Our guide to dying without a will in New York explains who inherits when there is no valid will.
- What is the ground? Forgery or revocation by a later will, backed by probable cause, falls under (b)(1). Undue influence, lack of capacity and execution defects do not.
- What did the SCPA 1404 examinations show? Take the protected testimony first, then decide.
- Is the real issue what the will means? If the dispute is over how a provision should be read, a construction proceeding is protected by (b)(3)(E), and it is not a contest.
Sequencing matters most. A beneficiary who files objections right away, before using the protections in (b)(3), gives up the chance to learn whether the case is strong. Our guide to contesting a will in New York covers the objection process itself, and the SCPA guide explains how Surrogate's Court proceedings are organized.
What should executors and people drafting a will take from this?
A no-contest clause only works on a beneficiary who has something to lose. Paragraph (b) makes the condition operative "in case the will is contested by the beneficiary". A person who receives nothing under the will gives up nothing by contesting.
Executors should also know that the clause does not block an investigation. Once a will contains a no-contest provision, SCPA 1404(4) lets any party examine the nominated executors and the proponents. A nominated executor should expect that questioning and keep records of how the will was prepared and signed.
Talk to us before you sign or file anything
If you are a beneficiary under a New York will with a no-contest clause and you have doubts about it, the order of your steps matters as much as the merits. Estate Law New York, led by Managing Attorney Alan Vaitzman, Esq., represents beneficiaries and executors in probate disputes from our office on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation before you sign a waiver or file objections, and we will go through the will, the clause and your options under EPTL § 3-3.5.
Frequently Asked Questions
Can I lose my inheritance in New York for contesting a will?
Yes, if the will has a no-contest clause and you contest it as a beneficiary. EPTL § 3-3.5(b) makes that condition operative whether or not you had probable cause for the contest, subject to the exceptions the statute lists.
Does having a good reason to contest protect me from a no-contest clause in New York?
Only in one situation the statute names: a contest claiming the will is a forgery or was revoked by a later will, provided the contest is based on probable cause. For other grounds, EPTL § 3-3.5(b) makes the clause operative regardless of probable cause.
Will refusing to sign a waiver and consent trigger the no-contest clause?
No. EPTL § 3-3.5(b)(3)(C) says a refusal or failure to join in a probate petition, or to execute a consent to or waiver of notice of a probate proceeding, does not result in forfeiture.
Can I question the witnesses to a will without losing my gift?
Yes. EPTL § 3-3.5(b)(3)(D) protects the preliminary examination under SCPA 1404 of the proponent's witnesses, the person who prepared the will, the nominated executors and the proponents. Others can be examined on court approval based on special circumstances.
Is asking the court to interpret a will considered a contest?
No. Under EPTL § 3-3.5(b)(3)(E), starting, joining or acquiescing in a proceeding for the construction of a will or any provision of it does not forfeit any benefit under the will.
Does a no-contest clause apply to an infant or incompetent beneficiary in New York?
Not the same way. EPTL § 3-3.5(b)(2) provides that an infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit under it.
Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.