Avoiding Will Contests With An “In Terrorem” Clause

In order to discourage individuals from contesting a last will and testament, attorneys can include an in terrorem clause in the will. An in terrorem clause is a provision that can be drafted into a will providing that a beneficiary will forfeit all or part of his disposition if he contests the will. “In terrorem” means “in fear” in Latin. As such, the clause is meant to instill fear into the beneficiaries to comply with the terms of the will.
The New York Estates Powers and Trusts Law Section 3-3.5(b) states that “a condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to the following: such a condition is not breached by a contest to establish that the will is a forgery or that it was revoked by a later will, provided that such contest is based on probable cause. An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit there under.”
It should be noted that an examination under Section 1404 of the Surrogates Court Procedure Act does not violate an in terrorem clause. A Section 1404 hearing is one in which a party to the proceeding may examine any or all of the attesting witnesses to the will, the person who prepared the will, and if the will contains an in terrorem clause, the nominated executors in the will and the proponents of the will. These individuals may be examined as to all relevant matters, which may be the basis of objections to the probate of the will.
In a Kings County decision, In Re Will of Singer, a son lost his inheritance under his father’s will. The will contained two separate in terrorem clauses that forbade any attempt to oppose, object to, or in any way challenge the will or any portion of the estate plan set forth in it. The court found that conducting a deposition questioning the attorney who drafted a prior will made by the father to be in violation of the will’s “in terrorem” clause.
The Surrogate stated that even though the son failed to actually file objections to his father’s will, the additional deposition outside of the 1404 exams together with ongoing negotiations which took over one year served to “jeopardize the testamentary scheme.” The court stressed that an in terrorem clause is meant to carry out the testator’s intent. In this case the testator was specific in directing that his son take no action to contest or object to his will.
An example of an in terrorem clause includes language such as, “If any beneficiary in any manner, directly or indirectly, contests this will or any of its provisions, any interest in my estate given to the beneficiary is revoked and shall be disposed of in the same manner as if the beneficiary had predeceased me.”
Of course, if the will is challenged and found to be invalid, then the clause itself is also invalid and the heir takes whatever he would have inherited if there were no will.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn and Cedarhurst. Fatoullah is certified as an elder law attorney by the National Elder Law Foundation. He has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. Fatoullah also serves on the Executive Committee of the Elder Law Section of the New York State Bar Association. Fatoullah chairs the Legal Committee of the Alzheimer’s Association, LI Chapter, and serves on its Board of Directors. He is also a co-founder of the Senior Umbrella Network of Queens, and currently serves on its Board of Directors. This article was written with the assistance of Debby Rosenfeld, Esq., a senior staff attorney at the firm. The firm can be reached by calling 718-261-1700, 516-466-4422, 212-751-7600 or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
*Certified as an elder law attorney by the National Elder Law Foundation.