§ 551:22 — Enforcement of No-Contest Provision

I. For the purposes of this section, a "no-contest provision" means a provision of a will that, if given effect, would reduce or eliminate the interest of any beneficiary of such will who, directly or indirectly, initiates or otherwise pursues:
(a) Any action to contest the admission or validity of such will;
(b) Any action to set aside or vary the terms of such will;
(c) Any action to challenge the acts of the executor of such will or other fiduciary of such will in the performance of such executor's or other fiduciary's duties as described in such will; or
(d) Any other act or proceedings to frustrate or defeat the testator's intent as expressed in the terms of such will.
II. A no-contest provision shall be enforceable according to the express terms of the no-contest provision without regard to the presence or absence of probable cause for, or the beneficiary's good or bad faith in, taking the action that would justify the complete or partial forfeiture of the beneficiary's interest in the will under the terms of the no-contest provision. A no-contest provision shall be unenforceable to the extent that the will is invalid because of fraud, duress, undue influence, lack of testamentary capacity, or any other reason. In the case of an action solely to challenge the acts of the executor or other fiduciary of the will, a no-contest provision shall be unenforceable to the extent that the executor or other fiduciary has committed a breach of fiduciary duties or breach of trust.
III. Paragraph II of this section shall not apply to the extent that a person initiates, maintains, or cooperates in any of the following actions or proceedings:
(a) Any action brought by the executor or other fiduciary of a will that incorporates a no-contest provision, unless the executor or other fiduciary is a beneficiary against whom the no-contest provision is otherwise enforceable;
(b) Any agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to such will;
(c) Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision;
(d) Any action brought by a beneficiary under a will or on behalf of any such beneficiary for a construction or interpretation of the will;
(e) Any action brought by the attorney general for a construction or interpretation of a will containing a charitable trust or charitable bequests or if a provision exists in a will or trust purporting to penalize a charity or charitable interest for contesting the will or trust or instituting other proceedings relating to the estate or trust if probable cause exists for instituting proceedings; or
(f) A proceeding described in paragraph VIII.
IV. It is the intent of this section to enforce the testator's intentions as reflected in a no-contest provision described in paragraph II of this section to the greatest extent possible. The provisions of this section shall be construed and applied in a manner consistent with such intent.
V. This section shall apply to all judicial proceedings concerning the enforcement or interpretation of a no-contest provision commenced on or after its effective date.
VI. In the executor's discretion, an executor may suspend distributions to a beneficiary to the extent that, under a no-contest provision, the beneficiary's action potentially would have caused the reduction or elimination of the beneficiary's interest in the will. In the executor's discretion, the executor may resume those distributions at any time or may continue to suspend those distributions until a court determines whether the beneficiary's interest in the will has been reduced or eliminated.
VII. In the executor's discretion, an executor may decline to distribute property in accordance with a person's purported exercise of a power of appointment or a power of withdrawal to the extent that, under a no-contest provision, the person's action potentially would have caused the reduction or elimination of the power of appointment or the power of withdrawal. In the executor's discretion, the executor may make those distributions at any time or may continue to decline to make those distributions until a court determines whether the person's power of appointment or power of withdrawal has been reduced or eliminated.
VIII. To the extent that the executor acts in good faith, the executor is not liable to any person for exercising the discretion under paragraph VI or VII or not exercising that discretion. An executor shall be presumed to have exercised the discretion in good faith if, in any judicial proceeding, an interested person other than the executor has requested a determination of whether, under the no-contest provision, a beneficiary's interest in the will, a person's power of appointment, or a person's power of withdrawal was reduced or eliminated. An executor or any other interested person may commence a judicial proceeding for purposes of determining whether the executor's exercise of discretion under paragraph VI or VII was made in good faith.

Legislative History

2011, 243:2, eff. Sept. 11, 2011. 2014, 195:2, 3, eff. July 1, 2014.