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What is a Will In Terrorem Clause and How Does it Work?

Photo of a will, a pen, and a Last Will and Testament with a will in terrorem clause.

A will in terrorem clause is a legal provision that can be included in a will to discourage beneficiaries from challenging its validity. This clause disinherits any beneficiary who contests the will, which means they will not receive any inheritance. However, there are still ways to get around it. Learn more about how this clause works and its potential benefits and drawbacks.

What is a Will In Terrorem Clause?

A will in terrorem clause, also known as a no-contest clause, is a legal provision that disinherits a beneficiary who challenges the validity of a will. This clause is often included in wills to discourage beneficiaries from contesting the will and potentially causing family disputes and legal battles. However, it is important to note that the use of a will in terrorem clause can also have potential drawbacks and limitations, and should be carefully considered before including it in a will.

Understanding the Enforceability of a Will In Terrorem Clause.

While a will in terrorem clause can be a useful tool for discouraging beneficiaries from contesting a will, its enforceability can vary depending on the jurisdiction and specific circumstances of the case. Some states have laws that limit the enforceability of these clauses, while others may require specific language or conditions to be met in order for the clause to be valid. It is important to consult with a qualified  probate litigation attorney to determine the best course of action for your individual situation.

The Enforceability of an In Terrorem Clause in Arizona.

By statute, in Arizona, in terrorem clauses are not enforceable in a will if the person had probable cause for filing the contest at the time that they filed it. Probable cause means that there is sufficient evidence that would cause a reasonable person to believe that they have a substantial likelihood of succeeding on the validity of the claims.

If there is a challenge to the validity of the will, even if the person loses, as long as they had a substantial basis to believe that they would succeed, based on the evidence at the time, then they’re not disinherited. But if they file a contest in violation of the no-contest clause without probable cause, then they’re disinherited.

What are the Benefits of Including an In Terrorem Clause in a Will?

The main benefit of including a will in terrorem clause in a will is that it can discourage beneficiaries from challenging the validity of the will. This can help to prevent costly and time-consuming legal battles that can drain the estate’s resources and cause family conflicts. Additionally, it can provide peace of mind for the testator, knowing that their wishes will be carried out without interference.

What are the Drawbacks to Including a Will In Terrorem Clause in a Will?

Including an in terrorem clause in a will, while intended to discourage challenges and disputes, does come with certain drawbacks. One major drawback is that it can create a hostile environment among family members or beneficiaries, potentially straining relationships and leading to prolonged legal battles. The clause may deter beneficiaries from raising valid concerns or contesting the will, even in cases where there are legitimate grounds to do so. Additionally, the enforceability of will in terrorem clause clauses can vary by jurisdiction, and there is always a possibility that a court may invalidate the clause if it is found to be overly broad or against public policy. Furthermore, the inclusion of an in terrorem clause may increase the likelihood of litigation, as disappointed beneficiaries may feel compelled to challenge the validity of the clause itself. Careful consideration should be given to the potential negative consequences before including a will in terrorem clause in a will, and seeking the advice of an experienced estate planning attorney is recommended to navigate the complexities and implications of such a provision.

Strategies for Challenging a Will In Terrorem Clause.

If you are a beneficiary who is considering challenging a will in terrorem clause, it is important to understand that these clauses are designed to discourage challenges and can be difficult to overcome. However, there are some strategies that may be effective in certain situations. For example, if you can prove that the testator was not of sound mind or was unduly influenced when they created the will, you may be able to challenge the validity of the clause. It is important to consult with a qualified probate litigation attorney to determine the best course of action for your specific situation.

Hire an Attorney if There is an In Terrorem Clause in Your Loved One’s Will.

If you are dealing with a will in terrorem clause in your loved one’s will, it is important to hire an experienced estate planning attorney. These clauses can be complex and difficult to navigate, and an attorney can help you understand your rights and options. We can also help you determine if there are any grounds for challenging the validity of the clause or the will itself. With our help, you can ensure that your loved one’s wishes are carried out in a fair and legal manner.

Give us a call today at 602-443-4888. We’re here to help.

 

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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