Utilizing An In Terrorem Provision In A Last Will And Testament

An in terrorem is a Latin word meaning “in fear”.  It refers to a provision within a Decedent’s Will to disinherit a beneficiary if he or she challenges the Will in any way.  Instead of a beneficiary receiving what he or she may have been entitled to within the Will, the individual will receive nothing, due to challenging the Will.  He or she will essentially have forfeited any inheritance they were entitled to.  This provision is intended to dissuade a person from contesting a Decedent’s Will.  Further, an in terrorem provision is strictly construed by the courts.

The law poses some limits on an in terrorem provision to prevent undue influence or fraud.  For instance, a beneficiary may inquire about the drafting of the decedent’s Will without forfeiting his or her inheritance.  This is known as a safe harbor provision. Safe harbor provisions provide an individual a way in which to evaluate the risk of contesting the Decedent’s Will.

If a beneficiary challenges the Will, an in terrorem clause may be overcome if the decedent’s Will is discovered to be invalid due to undue influence, improper execution, or lack of capacity.

It is important to remember that while an in terrorem provision may dissuade beneficiaries from contesting a decedent’s Will, it does not preclude them from doing so. In essence, a beneficiary who is left very little or perhaps nothing may be inclined to challenge the Will because doing so poses very little risk.  On the other hand, a person who is left a substantial amount may be less likely to challenge the Will.

While an in terrorem provision will minimize the risk of a beneficiary challenging the validity of a decedent’s Will, it does not eliminate the possibility.  It is important to speak with an experienced estate-planning attorney to ensure that you or your loved ones needs are met. The experienced attorneys at the Law Offices of Hunziker, Jones, & Sweeney help seniors and their families handle all aspects of estate planning, including the establishment of a Last Will and Testament. Our New Jersey estate planning lawyers are trusted by their clients to handle each legal matter with diligence and compassion. For more information, contact our New Jersey estate planning law firm at (973) 256-0456.

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