A No Contest Clause Cannot Prevent A Beneficiary From Seeking A Fiduciary Accounting

https://www.juleshaasattorney.com/practice-areas/trust-and-estates/estate-planning-and-wills/Estate planning in New York is important. It is the method by which a person can specify the manner by which assets can be distributed upon death or other situations. Documents which are typically associated with estate planning include a Last Will and Testament and a Living or Grantor Trust. Also, papers such as a Power of Attorney, Health Care Proxy and Living Will which are advance directives are usually associated with the estate planning process. The New York Probate Lawyer Blog has published many articles concerning estate planning.

A Will and Trust document typically contains various provisions concerning the disposition of assets and the designation of beneficiaries. The papers also contain designations of fiduciaries such as executors or trustees. Other terms may include fiduciary powers and clauses dealing with the payment of taxes.

In certain situations, a person may be concerned about whether assets should be disposed of by a Will or whether to use a revocable or living trust to avoid probate. There are various considerations on this topic. For example, a trust may be preferred in the event a person’s kinship is unclear and the goal is to avoid a kinship hearing in a Surrogate’s Court probate proceeding. Also, probate may need to be avoided if it is anticipated that there may be a Will Contest in the probate proceeding.

With respect to Will Contests, it is common that No Contest clauses are inserted in Wills and also in living trusts. These clauses are formally known as in In Terrorem Clauses. Where an In Terrorem Clause exists, a question arises as to what actions by a beneficiary results in a violation of the clause. If the clause is violated, the offending beneficiary usually forfeits his beneficial share under the Will or Trust. Estates, Powers and Trusts Law section 3-3.5 entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”, specifies limitations regarding the use of such clauses.

A recent Queens County estate case recently dealt with the limited use of such clauses. In a case entitled “Lifetime Trust of William and Barbara DeMarino.” Queens Surrogate Peter J. Kelly, in a decision dated October 28, 2024, determined the limitations of these clauses. The case involved a Will and Trust which contained in In Terrorem Clause. In the proceeding, the Court found that this type of language could not prevent beneficiaries from commencing proceedings in Surrogate’s Court to require a fiduciary to make distributions required by the documents. The Court pointed out that public policy prevents such clauses from being utilized to shield a fiduciary from being accountable for his conduct or failure to exercise care and diligence.

As can be seen from the DeMarino case, there are many complicated issues which arise in trust and estate cases. An experienced trust and estate attorney can assist with these types of situations. I have represented clients in trusts and estate cases in New York for over 40 years.

Do you have a trust or estate question? Call me now for a free confidential review of your matter.

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New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years to resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.

If you or someone you know has any questions regarding these matters, please contact me at

(212) 355-2575 for an initial free consultation.