What is an In Terrorem or “No Contest” Clause?

//What is an In Terrorem or “No Contest” Clause?

What is an In Terrorem or “No Contest” Clause?

What is an In Terrorem or “No Contest” Clause? by Deborah E. Kaminetzky

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.

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

 

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

 

By | 2018-01-05T13:06:28+00:00 March 23rd, 2017|Estate Planning|Comments Off on What is an In Terrorem or “No Contest” Clause?

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.