By Jason Stern
HOW TO PREVENT A WILL CONTEST? In Terrorem Clauses
Many of my clients have children who may not particularly like one another for one reason or another. Perhaps one child rebelled against their family or was something of an outcast. In any event it is common for a parent to want to leave one of their children significantly less of their estate than their other children or may even want to cut them out completely. As a NY estate lawyer who has probated quite a few of these types of estates over the years I can usually see the end before the beginning.
When you completely cut a child out of your estate you are inviting a will contest. Which is fine. I have no problem being deposed by the angry distributee’s lawyer for a day who is trying to overturn my airtight will. Be my guest. However an experienced NY estate lawyer will see a will contest coming a mile away and take all the steps necessary to insulate your estate before the will is even drafted. Like any war, and litigation is war, it is won or lost before it is ever fought. In this case, a will contest is won at the point of execution of the testator’s will.
By the time I am deposed there is nothing to question me about that could impact the validity of the will.
However, what happens when you do not wish to cut out your child completely but only wish to give your other child a greater share?
For these instances I like to incorporate my “In Terrorem Clause” which is a Latin term that literally means “In Fear”. And In Fear is where distributees will be before they decide to challenge a properly drafted In Terrorem Clause by an experienced NY estate and probate lawyer. How it works is simple yet effective in discouraging any and all will contests. The In Terrorem Clause simply states if you are in the will and choose to contest any provision of the instrument you disagree with, and you lose, you inherit NOTHING. Let’s see how it works;
Client A has an estate of $1 million dollars which she would like to leave to her three children, B,C, and D. C and D are both professionals with families who are good with money while B has always been in between jobs, broke, in and out of jail and never really wanted to be part of the family. As a NY estate lawyer I can tell you this scenario happens quite often. So what is a loving parent to do? Obviously, Client A loves all her children but is worried that if she leaves Child B a third of her estate, $333,333.00, Child B will blow it on drugs or worse. Aside from setting up an elaborate trust for Child B, which would also be a viable option, Client A opts for a simple will with an expertly drafted In Terrorem Clause by an experienced NY estate lawyer. The will would provide for Child B to receive $45,000.00 while Child C and D inherit the remaining portions of the estate in equal distributions.
As such, because of this In Terrorem Clause, Child B would lose his entire $45,000.00 bequest should Child B decide to contest this will and lose. In most instances a will contest is meant as a scare tactic as very few are ever successful. However, as one of the few NY probate lawyers in New York to successfully challenge attorney drafted wills, I can tell you a will contest can be a debilitating process for everyone involved. The In Terrorem Clause is a great way to short-circuit a will contest before it begins. In the instance above, Child B would never proceed with a NY will contest in light of this In Terrorem Clause.
With the right NY estate planning lawyer probate is nothing to fear. It is a quick and efficient way to transfer wealth from one generation to the next. But like anything else in law, small issues can become big one’s very quickly. When planning your estate it is very important to have an experienced NY estate lawyer who can prevent these minor issues from becoming complex one’s. In NY, the Surrogate’s Courts have been reluctant to deny will contestants due process by virtue of clauses such as these. As such, it has become critical for an In Terrorem Clause to have the right wording for the Courts to uphold them.
If you or a loved one is thinking about planning their estate, feel free to speak to a NY estate lawyer at the Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation.