In Terrorem Clause/No Contest Clause
You may have heard of an “In Terrorem Clause,” also called “No-Contest Clause.” Joan Rivers had one in her Will.*
This is a provision that can be included in a Will which states that if any beneficiary or legal heir of the Estate tries to contest the Will, they will be treated as though they predeceased he Testator—in other words, they will be disinherited.
An In Terrorem Clause is designed to “scare off” anyone who might try to contest the Will with the threat of losing their right to share in the Estate.
Many wealthy individuals include an In Terrorem Clause in their Wills.
Although may seem like a good idea, especially if you are concerned about a potential Will contest or have a large Estate, it is largely a wasted effort.
Most states hold that these clauses are unenforceable if the person challenging the Will has probable cause to do so. Nearly every person who challenges a Will in court will have probable cause.
Some states, such as New York, state that In Terrorem Clauses are never enforceable, even if the person filing suit does not have probable cause to contest the Will.
In all likelihood, an In Terrorem Clause will not stop a relative or beneficiary from contesting your Will. Instead, you should make sure that your Will is properly executed, is up-to-date, and reflects your wishes. As long as this is the case, even if someone does contest your Will, the Will contest should not be successful.
Still, we all know that any litigation can be expensive and lengthy. If you have any real concern that somebody will contest your Will, then we recommend a Trust. A Trust is harder to dispute or contest logistically. For this purpose, the Trust can be Revocable during the person’s lifetime and become Irrevocable at the person’s death.