What is an in terrorem clause in a will?
When you execute a will, your hope is that your final wishes will be carried out in a manner of your choosing. Actions will be taken and assets divided according to your desire, with little to no infighting amongst your beneficiaries. The last thing you want is for your beneficiaries to experience prolonged litigation and you may choose to include a no-contest clause in your will to discourage disagreement
The basics of no-contest clauses
In terrorem, or no-contest clauses, have been a part of wills for a very long time. In terrorem is Latin for ‘in fear’ and they are intended to strike some measure of fear in beneficiaries. Though the language used in different wills may change, a no-contest clause will generally state that, should a beneficiary challenge the will, that beneficiary will be disinherited and gain nothing from the estate.
Not all states honor no-contest clauses. New York does, but it does so strictly. As much as New York wants to abide by the terms of a deceased’s will, it will enforce no-contest clauses no further than it must. And beyond its policy to construe the clauses strictly, New York also provides a number of circumstances which will not trigger a no-contest clause at all.
Safe harbor provisions
New York’s statutory safe harbor provisions permit a beneficiary to inquire into the manner in which a will was made without risking disinheritance. The provisions exist to prevent things like fraud and undue influence. They allow a beneficiary to examine witnesses critical to the will, such as the person who prepared the will or its executor. If the deceased is found to have lacked the necessary mental capacity, for instance, the will can be voided and the no-contest clause may have no effect.