In this week’s post I discuss in terrorem clauses, more commonly known as no contest clauses which can be found in a last will and testament. In terrorem is a Latin term meaning “in fear”.
The purpose of such a clause is to discourage will challenges. The clause states that if an heir files a legal proceeding challenging the will, he or she will not receive any interest in the estate. These clauses are generally allowable because they support the idea that a person’s wishes with respect to the distribution of his or her estate should be honored, however, that is a very general statement. There is more to it than that.
For example, when one of our clients disinherits a family member, they typically will ask for a no contest clause to be inserted in the will. But, if an heir isn’t receiving anything in the will anyway, adding an in terrorem clause doesn’t really act as a disincentive.
The issues surrounding no contest clauses are a bit more involved. It is important to understand that the clause doesn’t provide absolute protection against will challenges no matter what. I’ll explain more next week.