The in terrorem clause, also known as a “no-contest” or “forfeiture” clause, is a provision commonly included in wills and trusts to deter beneficiaries from challenging the validity of the legal instrument. In New York, this clause is recognized and enforced by the courts, providing a significant legal shield for estates against potential disputes. In this article, we will discuss the basics of the in terrorem clause, its enforceability in New York, and key considerations for both testators and beneficiaries.
The In Terrorem Clause: A Brief Overview
An in terrorem clause is a legal provision that threatens beneficiaries with the forfeiture of their inheritance or interest in an estate if they contest the will or trust. By including such a clause, the testator – the person creating the will – aims to discourage litigation and ensure that their intentions are carried out as planned.
Enforceability of the In Terrorem Clause in New York
New York courts have a long-standing history of upholding in terrorem clauses, as they promote the testator’s right to dispose of their property as they see fit. Under New York’s Estates, Powers and Trusts Law (EPTL) Section 3-3.5, a no-contest clause is generally enforceable, except in the following circumstances:
(1) Such a condition is not breached by a contest to establish that the will is a forgery or that it was revoked by a later will, provided that such contest is based on probable cause.
(2) An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit thereunder.
(3) The following conduct, singly or in the aggregate, shall not result in the forfeiture of any benefit under the will:
(A) The assertion of an objection to the jurisdiction of the court in which the will was offered for probate.
(B) The disclosure to any of the parties or to the court of any information relating to any document offered for probate as a last will, or relevant to the probate proceeding.
(C) A refusal or failure to join in a petition for the probate of a document as a last will, or to execute a consent to, or waiver of notice of a probate proceeding.
(D) The preliminary examination, under SCPA 1404, of a proponent’s witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding and, upon application to the court based upon special circumstances, any person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will.
(E) The institution of, or the joining or acquiescence in a proceeding for the construction of a will or any provision thereof.
It is crucial for testators and beneficiaries to be aware of these exceptions when considering the implications of an in terrorem clause in New York.
Key Considerations for Testators and Beneficiaries
For Testators:
Clarity and specificity: To ensure the enforceability of an in terrorem clause, it is important to clearly specify the conditions under which the forfeiture will occur and the extent of the forfeiture.
Legal counsel: It is highly advisable to seek legal counsel when drafting a will or trust containing an in terrorem clause to avoid potential pitfalls and ensure compliance with New York law.
Revisiting the will: Testators should periodically review their will to ensure that it remains current and aligned with their intentions, especially in light of any significant life changes or updates to estate laws.
For Beneficiaries:
Understanding the clause: Beneficiaries must be aware of the existence of an in terrorem clause and its potential consequences, as contesting the will or trust might lead to forfeiture of their inheritance.
Seeking legal advice: If a beneficiary has concerns about the validity of a will or trust, it is crucial to consult with an attorney before initiating any legal action to avoid unintentionally triggering the in terrorem clause.
Communication: Open communication between the testator and beneficiaries can help clarify intentions, address concerns, and reduce the likelihood of future disputes.
The in terrorem clause serves as a valuable tool to protect the wishes of testators in New York, ensuring that their estates are distributed according to their intentions. However, both testators and beneficiaries must be aware of the intricacies surrounding its enforceability and the potential consequences of contesting a will or trust. By understanding and considering the key points discussed in this article, individuals can better navigate the complexities of estate planning and inheritance in New York.