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"In Terrorem" or No Contest Clauses discourage will contests by disinheriting the beneficiary who contests the terms of the will.
In terrorem is Latin for “In order to frighten.”
As a legal term In Terrorem is a warning to prevent inheritance beneficiaries from contesting the will. Also called a No Contest Clause, if a beneficiary contests the will they will either be completely disinherited or a reduced inheritance.
The person making the gift or inheritance can make these decisions, however the person receiving the inheritance is not allowed to make these decisions.
In Terrorem clauses can act as a will challenge discouragement.
However, In Terrorem clauses will not prevent a will contest.
In Terrorem clauses, just create consequence for will disputes.
Inheritance Disputes can still be filed based on lack of capacity, Undue Influence, fraud and mistakes. If the beneficiary contests a will and is successful, then the contest clause usually does not apply. If the dispute is unsuccessful, the disputing beneficiary must argue that the contest action contained “probable cause.” If it is found that beneficiary had probable cause the beneficiary is not disinherited per the In Terrorem clause.
In January 2010 California courts significantly changed the courts position on In Terrorem clauses.
If you are drafting a will and want to discourage the possibly of will contests, In Terrorem clauses can be an option. However, there are detailed limitation and processes that must be followed to maintain the no contest clauses effectiveness.
As a beneficiary if you feel strongly and/or have evidence that the Will should be contested, you need to be extremely cautious if there is an In Terrorem clause. Justification for will contest like Testamentary Capacity, Undue Influence, Mistakes, Forgery and Fraud are still valid and can be successful. Due to the risk of triggering the In Terrorem consequences using a lawyer is highly recommended.
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