Tuesday, December 18, 2012
Clause not enforceable after the testator’s estate is closed. The testator devised real property to his children for life, remainder to the last surviving child. His will included a no contest clause and a prohibition on any of the life tenants commencing a partition proceeding. More than 20 years after testator’s death, two of the children began a partition action which was dismissed. Two other children then brought a declaratory judgment action to enforce the no contest clause. The trial dismissed and the Nebraska Supreme Court affirmed, holding that the partition action could not be a will contest because it was filed after the estate was closed. Martin v. Ullsperger, 822 N.W.2d 382 (Neb. 2012).
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.