Blog Post

No One Can Contest a New York Will If It Includes an In Terrorem Clause. Right? Right?!?!?!!?

Future Wealth Navigator

Unfortunately, including an in terrorem (“no contest”) clause in your Will does not make it impenetrable under New York law.

Although New York law recognizes in terrorem clauses as valid, they are narrowly construed by the courts. An in terrorem clause in a Will threatens that if a beneficiary challenges the Will, such beneficiary (and, typically, all of his or her descendants) will be treated as if he or she predeceased the testator, thereby disinheriting the beneficiary. The purpose of an in terrorem clause is to discourage litigation and ensure that the testator’s intentions are carried out.

Regardless of how well drafted a Will’s in terrorem clause is, the conditions that trigger forfeiture are limited by statute in New York. New York Estates, Powers and Trusts Law (“EPTL”) 3-3.5(b) sets forth a non-exhaustive list of exceptions where an in terrorem clause will not be triggered by a beneficiary’s actions regardless of the terms of the in terrorem clause.

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