Alper v. Alper

In Alper v. Alper (1949) 2 N.J. 105 65 A.2d 737, the testator included a provision that if any of his children or grandchildren who were identified in his will contested that will, then the bequests of all these beneficiaries would be annulled, whether or not they had participated in the contest, and their shares would all go to his favorite daughter, the executrix of the will. (Alper, supra, 60 A.2d at p. 882.) One other daughter, who was named in the will but was not a beneficiary, although her children were, contested the will. (Ibid.) Thereafter, a son sued the executrix to enforce the bequests in the will. (Id. at p. 881.) Noting that there was no ambiguity about the language of the forfeiture clause, the court in Alper found the forfeiture provision valid. (Alper, supra, 60 A.2d at p. 884.) In response to the argument that the clause was unjust because it deprived noncontesting, nonoffending beneficiaries of their testamentary gifts, the court held that the provision was not unjust, because "a testator knows best the character and disposition of those upon whom he bestows his bounty and understands better than anyone else what pains and penalties will be effective to prevent litigation over his will." (Ibid.) Since it is not unjust (or at least not unlawful) for a testator to favor some of his kin over others, or to disinherit selectively, the court reasoned, "surely, it cannot be deemed unjust that he bestow his bounty upon express conditions which, to his way of thinking, would secure his will against contest." (Ibid.) The court further observed that even if such a provision were deemed unjust, "it would constitute no sound objection to the validity of the will," because "courts do not undertake to substitute their own concepts of morality and generosity for those of testators." The court noted that the testator clearly added the forfeiture clause "in the hope that its drastic effect would be a deterrent upon all and that the many would be able to dissuade the few or the one from taking a step harmful to all." (Ibid.) The court further ruled that the forfeiture clause did not offend public policy, because "no question of public policy is or can be involved therein. It is of no interest or concern to the public which, if any, of a testator's children or other relatives shall succeed to his estate. If it were otherwise, then a testator would be unable to donate his estate to charity, to the exclusion of his family. The law is otherwise." (Alper, at p. 886.) The New Jersey Supreme Court upheld the equity court on the grounds that the testator could have given all the various beneficiaries' bequests to the executrix in the first place, and because the former beneficiaries' arguments all related "not to the public interest, but rather to matters of purely private concern affecting the wisdom of the exercise of the testamentary power." (Alper v. Alper, supra, 65 A.2d at p. 741.)