A provision in a will known as an "in terrorem clause" can often be a highly effective way to make sure the terms of your will are honored and that the estate will not be challenged.
What Is An "In Terrorem Clause"?
Not surprisingly, the root of the term "In terrorem" is the word "terror." It is a clause, sometimes used in wills, to not-so-gently discourage a person from challenging the will. It is a provision that says that if any person named in the will challenges the will that that person will forfeit any bequest in the will.
An Example of An In Terrorem Clause
Let's say that Mary has three children. She decides to make those three children the beneficiaries of her will, but she also knows that each of her children (whose names are, rather creatively, A, B, and C) is in a very different financial position from one another, and, for that reason, she gives the least to C, who has a steady income and a nice lifestyle. Thus, her $1 million estate is divided in a way that A gets $500,000, B gets $300,000, and C gets $200,000. Mary expects that C may be a bit troubled by getting the least. So she puts a clause in her will that says, in effect, that anyone who challenges the will forfeits the bequest. That means that C has to feel very lucky if he wants to challenge the will. If he is successful in his challenge, he might get $333,000, but if he is unsuccessful, he gets zero. C becomes much less likely to challenge the will.
What If The Probate Contest Is Successful?
If C challenges the will and the will is declared invalid due to, say, Mary's lack of capacity to make a will, then the assets flow in intestacy. Forfeiture of a bequest under the will is no longer an issue because the will itself was knocked out.
Are In Terrorem Clauses Always Enforced?
Courts have some discretion as to whether to enforce an in terrorem clause. Still, it would be presumptuous to suppose that the court will not enforce the clause. This is especially so in light of the fact that the very reason for the clause is to prevent challenges to an estate.
Challenges Are A Balancing Act
Like many other decisions in life, whether to challenge a will that has an in terrorem clause is a balancing act in which one must weigh both the potential risk and the potential benefit. In the example above, C's upside is an additional $133,000 and his downside is the loss of $200,000. But imagine an estate of the same value in which C was to receive only $10,000. In that instance, the in terrorem clause might not be worthy of its name, because C's potential upside may outweigh the risk.
An in terrorem clause is rarely a bad idea, and there are many circumstances in which it is a very good idea. Sometimes an in terrorem clause can be a very effective way to substantially disinherit a family member while sharply reducing the chances of a probate contest. In the example above, let's imagine that C has argued incessantly with Mary and has been a difficult and unsupportive child. She might, because of that, wish to disinherit him completely, but she might also understand that doing so would almost guarantee a probate contest. Thus, she chooses to leave him, say, $50,000. By including an interrorem clause, she reduces the chances of a probate contest that might cost the estate far more than the $50,000 she is leaving to C.
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