When an individual wants to disinherit a family member, an “in terrorem” or “no contest” clause in his/her will can be effective. The clause can deter challenges to a will, but it does have its limits and should be used carefully.

No contest clauses provide that if someone challenges your will or any of its provisions, the person forfeits what they would have received under the will. Therefore, the beneficiary is “in terrorem” (in fear) of challenging the will lest they forfeit their inheritance. They can also be used to keep heirs from claiming to be entitled to property that was left to another under the will, or objecting to an action proposed in good faith by the executor of the estate.

The purpose of such clauses is to disincentivize frivolous and expensive estate litigation. However, they only work when the will does not completely disinherit the beneficiary. A beneficiary who is receiving nothing under a will has no reason to refrain from challenging the will since they have nothing to lose! Therefore, the better approach is to leave a disinherited heir some money that might actually deter them from challenging the will. This way, if they challenge the will and lose, they risk losing what they would have gotten had they not challenged the will.

New York enforces no contest clauses, but they are strictly construed, meaning that the court will look to the plain language of the clause with an eye toward circumscribing its application.

There are also statutory “safe harbors” to disinheritance under an in terrorem clause. These safe harbors allow a beneficiary to take certain actions that might otherwise constitute a challenge without triggering the no contest clause. Under these safe harbors, a beneficiary can do the following:

• Object to the jurisdiction of the court in a probate proceeding, such as if probate was commenced in the wrong state or county.
• Disclose information to the court or other parties. Simply providing information that has been requested is not a challenge to the will even if that information would tend to challenge the validity of the will.
• Seek to depose witnesses regarding the will. This is particularly important where a beneficiary has reason to doubt the authenticity of the will (for example, if the beneficiary believes the will was a forgery or that the testator was under duress or was not competent when executing the will). In such a case, a beneficiary could depose the person who drafted the will, the nominated executors and the individual seeking to validate the will in a probate proceeding and, if the court allows, any other person who could provide relevant information with respect to the validity of the will.
• Ask for an interpretation of the will. For instance, if a provision of the will is ambiguous, a beneficiary could ask for it to be construed or challenge someone else’s interpretation of the will. Even if the beneficiary is advocating for an interpretation of the will that will highly benefit them over others, it would not trigger the no contest clause and result in disinheritance.

The rationale of the safe harbors is a general public policy which promotes beneficiaries’ ability to conduct due diligence and gather information in order to determine whether a challenge to the will is grounded in fact without fearing disinheritance.

If you are considering disinheriting an heir, talk with a qualified attorney about your options.

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