When family disputes arise after a loved one’s death, estate litigation often follows. Many New York wills contain “no-contest” clauses, also known as in terrorem clauses. These provisions generally require beneficiaries to choose between accepting an inheritance or risking forfeiture by challenging the will. When disputes arise after the decedent’s death, such clauses are intended to discourage probate litigation. 

Pursuant to New York Estates, Powers and Trusts Law (“EPTL”) § 3-3.5, a no-contest provision in a will is generally enforceable regardless of whether a beneficiary had probable cause to challenge the will. In other words, a beneficiary who contests a will may forfeit an inheritance even if the challenge was objectively reasonable. Recent decisions by New York courts, however, reaffirm that such provisions are disfavored and will be strictly construed.

The statute gives no-contest clauses significant deterrent value. Estate planners often recommend them to clients concerned about family discord or the prospect of expensive probate litigation. By placing an inheritance at risk, the clause encourages disappointed beneficiaries to think carefully before litigating.

However, enforcement is not absolute. EPTL § 3-3.5 includes several exceptions, often referred to as “safe harbors,” designed to balance testamentary freedom with the public interest in ensuring that only valid wills are admitted to probate. These protected activities include: (i) challenging a court’s jurisdiction in a probate proceeding; (ii) providing information relevant to a probate proceeding; (iii) refusing to consent to probate; (iv) conducting certain pre-objection examinations authorized under New York Surrogate’s Court Procedure Act § 1404; and (v) bringing a proceeding to construe the terms of a will. EPTL § 3-3.5 also protects contests alleging that a will is a forgery or was revoked by a later will, provided the challenge is supported by probable cause. In addition, infants and legally incompetent beneficiaries may oppose probate without forfeiting their interests. These safe harbors are critical because they permit beneficiaries to investigate legitimate concerns without necessarily risking disinheritance.

Although enforceable, New York courts repeatedly describe no-contest clauses as disfavored because they result in forfeiture. As a consequence, courts interpret them narrowly and focus closely on the intent of the testator. For example, in a 2009 decision, the New York Court of Appeals considered whether a beneficiary’s discovery demands, beyond the specific examinations protected by the statute, triggered forfeiture. The beneficiary sought to depose the testator’s former attorney to determine whether objections to probate were warranted. After conducting the inquiry, the beneficiary elected not to file objections. The Court held that the conduct did not trigger forfeiture because it furthered, rather than undermined, the purpose of the no-contest clause by helping determine whether a contest was justified. This decision is significant because it recognized that the statutory safe harbors are not necessarily exhaustive. The ultimate inquiry is whether the beneficiary’s conduct frustrates the testator’s intent.

In 2014, the Appellate Division, Third Department held that petitioners who sought to admit a later will to probate after the nominated executor failed to do so, did not violate the no-contest clause because petitioners were not contesting the validity of the will or any of its provisions. In its decision, the Court reaffirmed that no-contest clauses are disfavored and must be strictly construed. 

However, in 2025, the Appellate Division, Second Department found that a beneficiary had forfeited any bequests to him under the decedent’s will and trust when he filed unsuccessful objections to probate alleging lack of testamentary capacity and undue influence. The Court determined that the beneficiary had attacked the validity of the will in violation of the decedent’s apparent intention to prevent such actions by including an in terrorem clause in the will.

Although EPTL § 3-3.5 only addresses no-contest clauses in wills, the reasoning behind this statute applies equally to trust agreements. In 2025, the Court of Appeals was asked to decide whether a beneficiary triggered the in terrorem clause in a trust agreement. The Court held that a beneficiary who sought to enforce the trust according to its terms did not violate the trust’s in terrorem clause as the beneficiary did not seek to nullify the trust or challenge its terms. The Court explained that the purpose of such clauses is to prevent challenges that would upset the creator’s dispositive plan—not to prevent beneficiaries from seeking to enforce that plan. The Court reiterated that in terrorem clauses, whether in a trust agreement or will, are enforceable but not favored and must be strictly construed.

The decision underscores a recurring distinction in trust and estate litigation: seeking to invalidate an instrument is different from seeking to enforce the instrument according to its terms. The latter generally does not implicate the concerns that no-contest clauses were designed to address.

Not every court proceeding involving an estate constitutes a prohibited contest. Statutory safe harbors, construction proceedings, fiduciary disputes, and certain investigative activities may fall outside the scope of a no-contest clause. 

Ultimately, no-contest clauses remain powerful estate-planning tools in New York. They are generally enforceable and can effectively deter costly probate litigation. Yet the law also reflects a competing concern: protecting legitimate efforts to determine whether a will is genuine, validly executed, and consistent with the decedent’s intent. The result is a nuanced framework in which courts enforce these provisions while carefully policing their boundaries. Therefore, whether a beneficiary’s conduct triggers forfeiture depends on the language of the governing instrument, the nature of the conduct at issue, and the decedent’s intent as reflected in the instrument itself.

Mallory K. Smith is of counsel with Adams Leclair LLP.  She can be reached at msmith@adamsleclair.law.

This article appeared in The Daily Record on August 6, 2026