In terrorem clause found viable to exclude contestor
In the Matter of the Estate of Rost
Claudia Handwerker appealed from the trial court's order. Claudia's mother, Annie, left behind a sizeable estate upon her death. Her will, executed in 2002, divided the estate among her four children and to several charities.
The will also included an in terrorem clause excluding any beneficiary from the estate if they contested the will. Claudia filed a caveat following her mother's death, protesting the grant of letters of administration to Claudia's brother, Norman, or admitting the will to probate.
Claudia later filed an amended answer removing her caveat but asserted a counterclaim objecting to appointment of Norman as executor of the estate and to the provision of the will devising a house in Princeton to Norman. Claudia alleged that Norman had stolen assets from the estate and argued that the house should be divided among the estate's assets.
The trial court denied Claudia's counterclaim and granted Norman's order to show cause. The trial court further ruled that, by filing a caveat, Claudia had engaged in a contest of the will. The trial court found that Claudia lacked probable cause to contest the will and therefore was excluded from inheriting under the will pursuant to the in terrorem clause. The trial court devised Claudia's share of the estate to her sister.
On appeal, the court affirmed the trial court's order. The court noted that by filing the caveat, Claudia had forced Norman to file suit in the probate part to dismiss the caveat and admit the will to probate.
The appeal court further noted that although Claudia later withdrew the caveat, she continued to challenge the will by objecting to the appointment of Norman as executor pursuant to the terms of the will. The appeal court found that Claudia had presented no evidence to support her allegations in her counterclaim and thus did not have probable cause to contest the will.
Source https://www.law.com/njlawjournal/almI...
