No Contest Clauses

It has been a long-standing rule in New Hampshire that a beneficiary who contests a will will forfeit his/her share in the will if there is a provision calling for forfeiture in the will itself.

Wills and trusts sometime contain no contest clauses. These are called “in terrorem clauses.” These clauses are intended to threaten a beneficiary with dispossession of their legacies …if the beneficiary chooses to challenge the terms of the will or the trust. In Shelton v. Tamposi, a 2013 New Hampshire Supreme Court case, the court upheld alower court ruling holding that the in terrorem clause of the Tamposi trust had been violated.

The court then ruled that Betty Tamposi, one of the beneficiaries of the trust has “forfeited her right, title and interest in the trust.”​ ​Here is what an in terrorem clause looks like and sounds like: “If any person shall at any time commence or join in the prosecution of any proceedings in any court or tribunal…to have…this trust….set aside or declared invalid or to contest any of the provisions included​​in….this trust…or to cause or induce any other person to do so, then and in that event such person shall thereupon forfeit any and all right, title and interest in or to any portion of the trust, and this trust shall be distributed in the same manner as would have occurred had such person died prior to the execution of the trust.”

In Burtman v. Burtman, a 1952 New Hampshire case, the court said: “…probably no jurisdiction has stood more steadfastly for giving effect to the intention of the testator rather than to arbitrary​ ​rules of law than New Hampshire.” As punitive as the ruling was in the Tamposi case, it is somewhat refreshing to know that​ ​if you make a will or trust in New Hampshire, there is solid chance that your intentions will be carried out. Mr. Tamposi indicated in his trust instrument that he didn’t want one of his beneficiaries to contest the terms of the trust. He provided a forfeiture if such an event occurred.

Our court took Mr. Tamposi at his word and upheld his stated intentions. Kevin Martineau left us with the following: “Say what you mean and mean what you say because the people that matter don’t mind and the people that mind don’t matter.” Mr. Tamposi seemed to understand that one or more of his beneficiaries might not mind. They are the poorer for it.

R. Peter Decato

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