In terrorem (“no contest”) clauses are frequently used by testators and attorney draftspersons to dissuade legatees from contesting wills by providing that a legatee who contests the will forfeits his or her bequest. Section 3-3.5 of the Estates Powers and Trusts Law permits in terrorem clauses but with certain specific limitations
It is possible to conduct a preliminary examination of the will’s witnesses and attorney draftsperson as well as the executor of the will pursuant to Surrogate’s Court Practice Act section 1404 without risking the penalties of an interrorem clause nor may such a provision be invoked by a proceeding to establish that the will is a forgery if there is probable cause or to contest the court’s jurisdiction to probate the will. A will contest brought on behalf of an infant or incompetent is not subject to an in terrorem clause. Also, merely refusing to execute a waiver and consent for the probate petition to go forward does not subject one to any in terrorem clause forfeiture.
An in terrorem clause will not become operative until after the will is admitted to probate. An in terrorem clause will generally not be construed during a probate proceeding but take notice that this has not universally been the case. After a probate proceeding has been completed, in terrorem clauses have been enforced.
Of course, in order to make sense, the legatee must balance the potential gain of a will contest against the loss of a substantial legacy. Angry wills which contain in terrorem clauses and then provide for a ten dollar bequest to an out-of-favor relative certainly won’t dissuade anybody from challenging the will. A fifty-thousand dollar bequest may give a legatee cause to think before initiating a will contest even though the overall size of the estate may be relatively large.