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Will-Contests and the importance of Terrorem Clause

Will Contests and the Importance of an In Terrorem Clause

Learn more about Will Contests and The Importance of an In Terrorem Clause

When contemplating one’s estate plan, it’s sometimes difficult to foresee any potential problems that can arise after you are deceased, whether it be the possibility of family drama, changes in the width and breadth of one’s estate, or the early death of heirs or spouses. Due to life’s inherent unpredictability, an estate plan needs to prepare for all these possible situations and many more to ensure that one’s intent regarding the distribution of their estate is carried out. One such event that can occur is a will contest, where a relative unhappy about the contents of a will or with suspicions regarding the validity of the will can challenge the document and potentially render it void in court.

While there are multiple valid reasons for a family member to contest a will, there also exist many reasons that are not as justifiable, such as discontent about their share, or lack thereof, of the estate or spitefulness towards the beneficiaries named in the will. To test one’s sincerity regarding their challenge to a will, estate planning attorneys generally include an in terrorem, or no-contest, provision in your will. Such a provision states that a beneficiary who contests the will loses typically all of their benefits given by the will. The provision is a popular one to include because it is low cost (only a few lines inserted into a Testator’s will), low risk (there is no penalty if the clause is declared unenforceable) and the provision provides a great benefit to making sure that the Testator’s intent is honored.

Most states will uphold forfeiture provisions but they tend to be strictly construed to only apply when the beneficiary’s conduct matches the conduct the testator prohibited in the will. In order for a forfeiture provision to function as intended, it must be drafted carefully to act as an effective deterrent to the inconvenienced beneficiary. If there is no gift or only a small portion of the estate left to the beneficiary, they will likely challenge the will due to the risk being low of them actually losing anything significant by way of the challenge. To combat this, a testator should have a backup recipient of the estate available so someone will be ready and willing to uphold the will against the challenger. Depending on who the backup recipient is, a charity for example, they may be able to expend adequate resources to uphold the will and preserve the testator’s intent.

One suggestion for potentially minimizing the likelihood of a will contest is to include an explanation regarding to whom certain portions of the estate are going. If beneficiaries know the testator’s reasoning behind bequests, they will perhaps not be so disgruntled when the distribution is made. However, an explanation can backfire if the explanation makes apparent that there was undue influence exerted by a certain beneficiary, for example, so care must be exercised if this method is used. An alternative method is to include an explanation outside the will document itself might be to include it in a video/audio file or separate document. It is the testator’s choice as to how they want to curtail the unfortunate event of a will contest. Any bolstering one can do to assist the enforcement of a forfeiture clause in averting will contests will be a prudent step to make in protecting the carrying out of the testator’s intent.

Let Our Legal Team at South County Law Firm Assist You

In sum, will contests can occur for a variety of reasons, some of which are justified and some of which are not. To discourage will contests based on spite or disgruntledness alone, forfeiture clauses are a low risk, low cost, and potentially high benefit method of ensuring the testator’s intent is carried out. To bolster the enforceability of a forfeiture clause and further minimize the occurrence of a will contest, one can also include explanations explaining their bequests to beneficiaries to eliminate misunderstandings. If you are considering an estate plan containing a will, please let our legal team at South County Law Firm assist you through this process!