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Filing a Caveat Requires Probable Cause

Posted: April 28, 2021

IMO Estate of Annie Rost, 2021 N.J. Super. Unpub. (Docket No A-1807-19) (App. Div. 2021). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Mercer County. Before Judges Sabatino, Currier, and Gooden Brown.

One of four children filed a caveat with the Mercer County Surrogate seeking to prevent the probate of her mother’s Will and the appointment of a personal representative. The Will provided a bequest of Decedent’s residence to her son who was also the named Executor, with the remainder distributed equally to all four children. The objectant wanted the Estate distributed equally, so she decided to object and file a caveat. But she had no real evidence to support that objection, and Decedent’s Will contained an in terrorem clause which required probable cause to file the caveat.

N.J.S.A. 3B:3-47 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.” See Haynes v. First Nat. State Bank of N.J., 87 N.J. 163, 189 (1981) (“We . . . decline to enforce an in terrorem clause in a will or trust agreement where there is probable cause to challenge the instrument.”). However, when a caveat is filed without probable cause, the in terrorem clause will be enforced against the caveator.

Months after the caveat was filed by his sister, the named Executor filed an Order to Show Cause and Complaint seeking probate of the Will. The objectant filed an answer, and while she “consented” to the probate of the Will in that answer, she maintained her objection to the bequest in the Will and the appointment of her brother, as Executor. Despite being given months to establish her claim, the objectant did not present any verified pleadings, affidavits, or certifications to support her objection.

The statute and case law make clear that the Court must enforce the in terrorem clause where there are no real facts or evidence to establish probable cause for filing the caveat. Because the objectant could not articulate any real facts or evidence to support the caveat, and because she maintained her objection to the Will with the caveat in place, the Court enforced the in terrorem clause and the objectant’s interest in the Estate was forfeited.

Practice note: In order to prevent the probate of a Will or the appointment of a personal representative of the Estate, a caveat can be filed by a beneficiary who objects, but this must be done before probate or administration is granted. In filing the caveat, a procedural advantage may be achieved because the proponent of the Will is required to file a formal action with the Superior Court to have the caveat removed. This filing will afford the objectant an opportunity to argue the case in Court before probate is granted. However, this window closes once probate or administration is granted, so if you are going to try and stop the process, a caveat should be filed within 10 days of a Decedent’s death. However, if the Will contains an in terrorem clause, an objectant must have real facts to establish probable cause to support the caveat, otherwise, the objectant runs the risk of losing his or her inheritance.

While the Courts in New Jersey will provide adequate opportunity to argue why a beneficiary believes that a will should be set aside, before a caveat is filed, there must be probable cause to make the inquiry in the first place. Therefore, in order to avoid forfeiture of one’s inheritance under an in terrorem clause, a beneficiary should consult with a probate litigation attorney to determine if there exists probable cause to file and maintain the caveat, and this will require real facts and evidence.