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What is a no-contest clause in a NY will? Estate of Pat Bowlen

20
Sep

By Jason Stern

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As a NY estate lawyer with more than two decades of experience drafting and probating NY wills we are also NY will contest lawyers.  When drafting NY wills for families in NY we are very aware of the circumstances surrounding each distribution and the realities those distributions may create in the future.  While no two families are exactly alike, neither are NY wills.   For example, in many instances a testator, person drawing up their NY will, may prefer one family member over another, leaving disparities in the amounts of bequests to each beneficiary.   Though you cannot completely disinherit your spouse pursuant to the NY estate law within your NY will, you are free to disinherit everyone else. For instance, if a parent prefers one child for one reason or another the parent may leave their favorite child a disproportionate bequest opposed to their less significant child or children. This will most likely cause discord when the NY will is probated and even a NY will contest within the parent’s estate.  

For the NY estate lawyer and their client in favor of the NY will, a NY will contest is the last thing they want.  If it is not bad enough they lost their family member now their NY estate could be tied up indefinitely while NY estate litigation is pending within the Surrogate’s Courts.  At best, the NY estate incurs tens if not hundreds of thousands of dollars in NY litigation fees after years of fighting and at worst the entire will is deemed a nullity and denied probate.  As such, the NY estate law provides for the Interrorem Clause, from Latin meaning in terror, or no-contest clause as it has come to be known.  Experienced NY will contest lawyers incorporate the no-contest clause into each of their NY wills when we think there is a chance an heir or beneficiary may contest the NY estate.   Simply stated the no-contest clause states that beneficiary A is to receive a fixed token amount, usually no less than $15,000.00, with the understanding Beneficiary A will be less than thrilled, but should beneficiary A contest the NY will they are to receive $0.00.  

How effective are no-contest clauses at protecting estates from NY will contest lawyers?  Pretty effective.  Very few NY will contest lawyers I know would consider litigating a NY estate where a no-contest clause is present.  In fact, it has been held inMatter of Ellis, 252 A.D.2d (2ndDept. 1998) that a beneficiary need not even have to file objections to the probate of the NY will, but a mere examination of a witness may be enough to trigger the no-contest clause and thus become disinherited.  It was further held that the no-contest clause does not just exist to discourage NY will contest lawyers from bringing these NY estates to trial but to spare NY estates from undue delay, expense, hardship and harassment as they proceed through probate.  

Estate of Pat Bowlen

Pat Bowlen passed away on June 13, 2019 at the age of 75 from advanced stages of Alzheimer’s Disease. At the time of his death, Pat Bowlen was the majority shareholder in one of the most successful sports franchises in history, the Denver Broncos valued at more than $2.5 billion dollars. In 1984 Bowlen purchased the mismanaged Denver Broncos football franchise from then owner Edgar Kaiser who was near bankruptcy with the organization at the time. Within a couple of years Pat Bowlen turned the team around making it the second most successful NFL franchise just shy of the New England Patriots.  

Pat Bowlen was survived by his second wife Annabel Bowlen and his seven children.  Pat Bowlen had a blended family meaning of Bowlen’s seven children, two, Amie Bowlen and Beth Bowlen-Wallace were from his first marriage with then wife Sally Parker.  Pat Bowlen’s remaining five children, Patrick, John, Brittany, Annabel and Christiana were all of his second marriage with Annabel.  Just three months after Pat Bowlen’s death, his two daughters from his first marriage are now contesting his 2009 will.  While the will leaves his estate equally to each of his children, the will names 29 year old daughter Brittany Bowlen as his successor to control and run the day to day operations of the coveted Denver Broncos organization moving forward.

Unfortunately for Beth Bowlen-Wallace, one of the parties contesting the will who believes she should control the franchise, Pat Bowlen’s will contains an In Terrorem Clause, no-contest clause.  This means 49 year old Beth Bowlen-Wallace would be disinherited if her will contest proved unsuccessful.  While will contest lawyers for Beth Bowlen-Wallace argue that in 2009, at the time of the purported will’s execution, Pat Bowlen was already suffering from the debilitating effects of Alzheimer’s Disease and did not possess the requisite capacity to formulate and understand his estate plan.  

While evidence of a debilitating condition such as Alzheimer’s Disease that results in severely diminished capacity will be considered by the Court pursuant to the NY estate lawyer it is not irrefutable evidence of the lack of testamentary capacity. In fact, most courts will only weigh and consider medical evidence of a debilitating nature against other factors such as did the decedent draft a will that was unnatural, leaving assets to strangers, and the length of time the decedent lived after executing the instrument. In this particular case the testator, Pat Bowlen lived quite a while after executing his will, just over a decade. Compounded by the existence of a no-contest clause, I would say that Beth Bowlen-Wallace’s will contest is little more than an inconvenience to the Bowlen estate rather than a legitimate legal threat.  Additionally, if it is also true that each of Pat Bowlen’s children receive equally under his will, Beth Bowlen-Wallace may not even have standing to contest the instrument as she is not adversely affected by its contents.  As such, if Beth Bowlen-Wallace’s will contest lawyers are not careful their client could forfeit a substantial interest in the Denver Broncos franchise according to the no-contest clause. 

If you think a family member may have been taken advantage of by an opportunistic relative or friend it never hurts to ask the opinion of an experienced NY will contest lawyer to see if it amounts to undue influence or fraud.  Feel free to call the NYC will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have more than 50 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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