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The No-Contest Clause and the NY Estate Law: Estate of Marylou Whitney

16
Oct

By Jason Stern

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At the time of her death on July 19, 2019, acclaimed philanthropist and well known socialite Marylou Whitney left behind a fortune estimated to be worth approximately $100 million dollars. The 93 year old, Whitney had married her first husband Frank Hosford, whom she had had three children with and later divorced.  Marylou Whitney would later marry second husband C.V. Whitney in 1958 whom she had one child with.  C. V. Whitney who was an avid horse enthusiast shared his passion with Marylou.  However C. V. Whitney would later pass away in 1992, as heir to the Vanderbilt fortune, leaving Marylou a NY inheritance of  $100 million dollars.

            After C. V.’s death Marylou continued their dynasty for horse breeding and racing, building one of the most prominent stables in the world. In fact, Marylou Whitney’s stables bred the 2004 Belmont Stakes winner Bird Stone upsetting Smarty Jones from achieving the famed triple crown, in addition to breeding the 2009 Kentucky Derby winner Mine That Bird.  

            In 1997 Marylou Whitney remarried professional tennis player John Hendrickson, who was nearly 40 years her junior.   The two remained married for 22 years up until the time of her 2019 death.  Pursuant to her NY will, Marylou Whitney’s NY estate lawyer incorporated a no-contest clause stating that if any party contested the NY will they would forfeit any interest to her NY estate.    The terms of Marylou Whitney’s NY will leaves two of her homes which sit on sprawling, palatial estates to two of her most dedicated employees. Additionally the NY will provides that $17.2 million dollars is to be divided between her four children in unequal shares with the remainder of the NY estate distributed to her surviving spouse, John Hendrickson.  Since Marylou Whitney’s passing all parties have consented to the probate of her NY will as written.

            So why haven’t any of Whitney’s children retained NY estate lawyers to contest the instrument?  Afterall Whitney’s NY will bequeaths two very valuable homes to non-family members while only a relatively small portion of the NY estate is to be divided unequally among her five children.

            There are two reasons why no party has hired a NY will contest lawyer to challenge Marylou Whitney’s NY will.  The first reason is that three of Marylou’s children who received no more than $1 million dollars each were born of her first marriage to Frank Hosford Deere as in John Deere, as in heirs to the John Deere tractor fortune and are each very wealthy in their own right.   

            The second reason no party has come forward to retain a NY will contest lawyer is the no-contest clause placed in Whitney’s NY will by her NY estate lawyer precludes any party from contesting the instrument without forfeiting their inheritance.  In this particular case Whitney went on to state within her NY will that, “I have given a great deal of thought to the division of my property at my death” and “I do not want any of those persons or entities named herein to contest the distribution being made to them or others, or in any way challenge my decision.”

            As a NY estate lawyer we strive to ensure that the wishes of each client as stated in their NY will is carried out to the letter. One of the best ways to ensure this result is by incorporating a no-contest clause within the body of the NY will itself.

How does the no-contest clause work?

For any NY estate lawyer probating their client’s NY will, a NY will contest is the last thing anyone wants.  Making the loss of a family member worse is the probability that the NY estate could be tied up indefinitely while NY estate litigation is pending within the Surrogate’s Court.  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 utilized.  In fact, it has been held in Matter 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.  The bottom line as a NY estate lawyer I can tell you, properly incorporating a no-contest clause into a NY estate plan is just good practice where appropriate.

If you or a family are thinking about drafting their NY will 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, Richmond and Dutchess.

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