Is it possible to have a will that would penalize those that unsuccessfully contest your will even if they aren't listed?

They are not executors, beneficiaries and are not listed on the will. They are immediate family. This person listed all friends on the will. Family wants to contest it. Is it possible to have a will that would penalize them for unsuccessfully contesting even though they are not listed?

Brooklyn, NY -

Attorney Answers (5)

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Lawsuit / Dispute Attorney - Bellmore, NY
Answered

It is possible. You should speak with an estate attorney, if this is a will you intend on having prepared.

Michael S. Haber

Michael S. Haber

Probate Attorney - New York, NY
Answered

Usually what one does as a means of discouraging challenges to the will is to insert what is known as an "in terrorem clause," which states that anyone who challenges the will will forfeit the inheritance that he or she is to receive pursuant to the will. That's why it makes sense for the will to be drafted in such a manner that each of these persons gets something under the will -- it certainly doesn't have to be a large bequest, but enough that the person would not wish to risk that bequest.

As you were advised, there is no requirement that family members be named in the will (with the exception that a surviving spouse who is left out or who receives only a minimal inheritance under the will can file a "right of election" by which he or she would receive up to one third of the value of the estate, depending on the actual dollar amounts involved).

When close family members are not included in the will, it usually makes sense for special attention to be paid in the drafting and, particularly, the execution of the will.

Good luck to you.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are... more
James Brian Thomas

James Brian Thomas

Probate Attorney - Dallas, TX
Answered

Clauses that heavily persuade a beneficiary or other interested person from contesting a Will are fairly common throughout our various states. Different states approach them in different ways -- some being very strict while others interpret them much more liberally. What you've asked about, however, is a bit different than the usual "challenge and you lose everything" clause.

You're talking about a punitive measure, a debt that is created by the enforcement of what may very well be a valid legal right -- challenging the Will. No court in Texas would ever support such a provision that would have a challenging beneficiary actually owe a punitive amount if they bring forward what could be a colorable claim. Assessing costs and attorneys' fees is one thing, and our courts do that frequently. But a punishment like you're thinking of simply does not fit with the public policy of what I would assume are several states.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make... more
Steven J. Fromm

Steven J. Fromm

Probate Attorney - Philadelphia, PA
Answered

Wills that contain "in terrorem" clauses usually relate to beneficiaries named in the will, but it all depends on the language in the will and state laws and case law on this subject. What is clear is that a person need not provide for family members in a will, except that a surviving spouse must be provided for in accordance with state statutes. In most states, a surviving spouse can demand a statutory forced share of 33% or some other statutory percentage from the estate if they are not named in the will. You need to speak with an estates attorney about the specifics and have the will and the circumstances of the will reviewed and analyzed.

Hope this helps.

Please remember to designate a best answer to your question.

Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia... more
Frank Louis Buquicchio

Frank Louis Buquicchio

Estate Planning Attorney - Ronkonkoma, NY
Answered

If they are not named then there is no need to penalize them. If they are unsuccessful, the Will stands and they get nothing. If they are successful, then there is an issue with the validity of the Will anyway.

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