In Terrorem Clauses – Enforceable or Not? (Part 1)

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.