December 4, 2022

Volume XII, Number 338


December 02, 2022

Subscribe to Latest Legal News and Analysis

Beneficiaries Should Exercise Caution Before Filing a Caveat

Outside the legal setting, “caveat” generally means a warning or caution. As addressed in our previous blog post, “It May Be Up To You To Prevent Exploitation,” it is also a simple and effective way to prevent a Will from being probated. However, a recent decision by the Appellate Division of the New Jersey Superior Court (In the Matter of the Estate of Rost, Docket No. A-1807-19) highlights the need for beneficiaries to proceed with caution before filing a Caveat.

Beneficiaries Should Exercise Caution

Wills of New Jersey decedents are generally probated through County Surrogate Courts. Probate is simply the process by which a Will is proven to be a valid legal document and through which the appointment of the Executor named in the Will (also known as a “Personal Representative”) is certified. New Jersey law provides that a decedent’s Will cannot be probated any earlier than 10 days after his or her death. Within that time, or any time before the Will is probated, a Caveat can be filed with the Surrogate. A Caveat is a simple signed statement (usually just one or two lines) stating that someone contests the probate of a Will. It does not need to state a reason. Once it is filed, the Will cannot be probated by the Surrogate. Instead, the proponent of the Will (typically the named Executor) must file an action in Superior Court to have the Will admitted to probate.

In Rost, a beneficiary filed a Caveat six days after the decedent’s death without ever having seen the Will. Unbeknownst to the beneficiary, the Will contained a “No-Contest” or “In Terrorem” clause providing that if any beneficiary contested the Will, that beneficiary’s inheritance would effectively be revoked. No Contest clauses were addressed in another previous blog post, “No-Contest Clause, No Problem?” New Jersey law generally provides that such clauses are not enforceable if probable cause exists for the contest. While there is very little guidance as to precisely what “probable cause” means in this context, the court determined that the contesting beneficiary in Rost offered absolutely no evidence to support their claim, and therefore, probable clause did not exist for the contest.

Filing a Caveat

The beneficiary argued that even if the probable cause threshold had not been met, the mere act of filing a Caveat is not a “contest” of the Will. The Court disagreed and upheld the No Contest clause, meaning that the beneficiary forfeited whatever they would have been entitled to under the terms of the Will.

While filing a Caveat is a simple and effective way to prevent a Will from being probated with the Surrogate Court, all putative Caveators should heed the Court’s holding that the filing of a Caveat is a “contest” for purposes of a No Contest clause. Therefore, caution is essential, particularly in cases where the Caveator has not seen the Will that is to be offered for probate or if the basis for a contest may be tenuous.

©2022 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume XI, Number 104

About this Author

James J. Costello, Jr. Estates and Trusts Attorney Norris McLaughlin New Jersey

James J. Costello, Jr., Co-Chair of the firm’s Estate, Trust, and Tax Law Practice Group, focuses his practice on estate planning and administration, litigation and disputes among beneficiaries, general federal and state tax law and controversies, and the formation, dissolution, purchase, sale, and mergers of all types of closely-held business entities.

Jim represents individuals in all aspects of general and sophisticated estate planning, including drafting wills, lifetime and testamentary trusts, powers of attorney, health care directives,...