May 17, 2024 | ALI CLE, Estate Planning, The Practical Lawyer


In terrorem clauses—sometimes known as no contest or forfeiture clauses—seek to prevent contest of a will or trust instrument by removing the beneficiary who challenges the provisions of the applicable instrument. If the beneficiary is removed, more often than not, his or her descendants also lose any beneficial interest to which they would otherwise have been entitled.

In Terrorem Clauses - Charles Clary Redd - Presented by ALI CLE

Beneficiaries are motivated to challenge a will or trust instrument because they stand to gain economically if successful in the challenge. A successful challenge to the validity of a document will cause the decedent’s estate or trust to pass intestate or pursuant to an earlier document that was not contested (or was not contested successfully). In some instances, a beneficiary may challenge the validity of only a portion of a document. If the beneficiary is successful, only that provision is eliminated, and the remainder of the will or trust instrument continues in effect. This approach, where allowed under applicable state law, can be beneficial if, for example, there are large pre-residuary gifts to individuals and all or a portion of the remainder is to pass to the challenger. Under these circumstances, the challenger may have more to gain by challenging only the pre-residuary gifts. The pre-residuary gifts would be eliminated, the residue would become larger, and the challenger would receive more than he or she otherwise would have received without the challenge.

Interested in learning more? Check out Charles “Clary” Redd’s ALI CLE webcast, Preventing Estate Litigation: Planning Techniques That Work – Or Do They?, on-demand now!

By using an in terrorem clause, testators and settlors seek to discourage beneficiaries from bringing these types of challenges. If, however, a testator or settlor has completely removed a child or other individual whom the testator or settlor believes would challenge the will or trust instrument, an in terrorem clause will not serve its purpose. In such a case, that child or other individual has nothing to lose by bringing a challenge. The use of in terrorem clauses is effective only when there is a sizeable enough gift to make the target beneficiary think twice about a challenge.

In terrorem clauses serve many purposes: (i) preventing costly litigation which would diminish the size of the affected estate or trust; (ii) preventing frivolous lawsuits which are a usurpation of court resources and time; and (iii) preventing private family information from being exposed to public view and scrutiny.

While preserving privacy is almost always a concern for estate planning clients, privacy carries special significance in the context of trust contests. Clients are attracted to revocable trusts because, when properly funded, a public probate proceeding can be avoided. As a result, the decedent is able to protect from broad disclosure details regarding his or her assets as well as the identity of the beneficiaries. This privacy screen is removed when family members and other beneficiaries litigate provisions of a trust instrument. Family life is then aired in the very public setting of the courtroom, which may reveal family secrets the decedent may have otherwise desired remain private.1 Consequently, a settlor may add privacy protection through the use of an in terrorem clause by discouraging beneficiaries from bringing these buried secrets into a public and unforgiving light.

On the other hand, the use and enforcement of in terrorem clauses present serious issues in connection with arriving at a just result regarding the disposition of property under a will or trust instrument. In many states, courts seek to balance a desire to honor the testator’s or settlor’s wishes against public policy. These courts are particularly concerned about preventing suits that would reveal to the court that a will or trust instrument was in truth and in fact executed outside the bounds of the law.2 In these states, courts will not enforce in terrorem clauses against beneficiaries who have a legitimate basis (probable cause) for challenging the validity of a will or trust instrument. The view in these states is that it is the court’s duty to ensure that wills and trust instruments comply with the law, and courts can do this only when interested parties are able without fear to raise issues of validity.


While the goal of all in terrorem clauses is to dissuade those who would challenge the will or trust instrument, there are different types of challenges that might be targeted by a given type of in terrorem clause.

To Discourage a Challenge Regarding Validity of a Document

Clauses relating to validity often encompass challenges to the document as a whole as well as challenges to specific provisions therein. The following is an example:

If any devisee or beneficiary under my will or under any trust established under my will shall in any way, directly or indirectly, initiate or participate in any contest, challenge, or attack to the validity of my will or any of its provisions, or object to or contest its admission to probate, or conspire with or give aid to any person doing or attempting any of the foregoing, then in each case all provisions for such beneficiary and his or her descendants herein shall be void and my estate shall be disposed of in the same manner provided herein as if such person had predeceased me leaving no descendants surviving me.3

A similar clause may also read:

Should any beneficiary hereunder, or anyone duly authorized to act for such beneficiary, institute or direct, or assist in the institution or prosecution of, any action or proceeding of any kind in any court, at any time, for the purpose of modifying, varying, setting aside or nullifying any provision hereof relating to my Louisiana estate on any ground whatsoever, all interest of such beneficiary, and the issue of such beneficiary, to my Louisiana estate shall cease, and the interest of such beneficiary, and such beneficiary’s issue, in and to my Louisiana estate shall be paid, assigned, transferred, conveyed, and delivered to, or for the benefit of, those persons would take such beneficiary’s interest in my Louisiana estate if such beneficiary died intestate, unmarried, and without issue on the date of the institution of the above described action or proceeding.4

These two clauses, while similar, may lead to significantly different outcomes in judicial interpretation. Assume for the purposes of comparison that the testator owns real property in Louisiana and Kentucky. Also assume that one of the testator’s children files a suit challenging the validity of a testamentary provision relating to the disposition of the Kentucky real estate. One can see how the two clauses may yield different results. The first clause is more general, addressing “any contest, challenge, or attack to the validity” of the will or any of its provisions. A challenge to a provision disposing of the Kentucky real estate falls within the scope of the first clause. The challenge, however, would fall outside the scope of the second clause because, by its express terms, the second clause relates only to the “Louisiana estate.”

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To Discourage a Challenge to Acts or Omissions of Fiduciaries

Many clients are concerned that, while the beneficiaries may not disagree with the dispositive terms of the will or trust instrument, the beneficiaries may develop a confrontational attitude toward the fiduciaries chosen by the client. Consequently, such clients sometimes insert clauses similar to the ones outlined above but revise the language to state that, if any beneficiary should challenge or attack the actions of an executor or trustee, such beneficiary and his or her descendants shall forfeit their share of the estate or trust, as the case may be.

This type of in terrorem clause is sometimes said to be a variety of exculpation clauses and held to standards governing those clauses.5 Note, however, that an in terrorem clause of this type is fundamentally different from an exculpation clause in that, with an exculpation clause, there is no possibility that a beneficiary who challenges a fiduciary’s acts or omissions will be removed as a beneficiary if the court finds the challenge not to be justified.

Other Types

The exact language used in in terrorem clauses can vary depending on the needs and concerns of the client. Such language can be broad, as in the examples above, or they can be narrow. For example, the clause may be triggered only by actions contesting the “distribution percentages or [distribution] procedures.”6 As an example, a challenge to the appointment of a particular individual as executor is unlikely to trigger this type of clause. By contrast, a broader clause providing for forfeiture in the event there is a contest regarding the provisions of the will would almost surely be triggered by such a challenge. This is because a provision of the will appoints the executor.

CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.

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