My late mother used to say no one owes you an inheritance, but what did she mean? Wouldn’t most people expect to inherit from their parent? The answer is that a will reflects the testator’s wishes, not their heirs’ expectations. Hence the In Terrorem or “No Contest” Clause.
Most of the time, people want to leave their assets to their family, their spouse, their children, perhaps a favorite charity. Sometimes people wish to leave their estate to their family, but not in equal shares. This is where an “in terrorem” or “no contest” clause comes in handy. What this clause does is say that anyone who contests the will based on the idea that the will is unfair risks losing their share. It provides a disincentive to a child who is thinking about a will contest.
There are several reasons a beneficiary might contest a will. One of them is “undue influence”. A beneficiary who is left a substantially smaller portion than their siblings may feel the siblings influenced the deceased against them and may seek to make the portions more even.
Occasionally children or a spouse of the deceased may find that there are bequests to non family members that may have influenced the deceased, such as a financial or business advisor or sometimes even the drafting attorney. This may call into question whether the deceased understood what they were doing at the time.
In order for a beneficiary to be dissuaded from contesting the will, they need to be left a bequest substantial enough that they don’t want to risk losing it. For instance, if you leave one of your heirs out of the will entirely, they have nothing to lose and therefore no incentive at all to refrain from a will contest.
The beneficiary, even with an in terrorem clause, is allowed under New York law to have preliminary discovery and to interview the attorney who drafted the will, as well as the witnesses, without risking their bequest. They can also get testimony from the executors and proponents of the will at something called a deposition. A beneficiary who is incompetent or a minor will be able to contest successfully despite an in terrorem clause.
Generally speaking, when a client tells us that they want to leave unequal bequests, we ask questions and take notes! First of all, should we be deposed, we can rely on our notes of what the deceased’s wishes were at the time and their reasoning behind them. Secondly, we point out to the deceased various considerations so that they can feel they have made the best decision to reflect their wishes. Should the testator still wish to give uneven shares after thoughtful consideration, we will include an in terrorem clause to give the testator the peace of mind that their wishes will be carried out, and fighting will be kept to a minimum.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516