Finding Safe Harbor in an In Terrorem World

Alexandra S. Cote
Director, Litigation Department & Chair of Probate Litigation Group
September 26, 2018

As noted in a prior post by Ralph Holmes, in terrorem or “no-contest” provisions are becoming increasingly common in estate plans in New Hampshire. Such provisions are intended to discourage litigation and effect this purpose by calling for the forfeiture of a legatee’s interests in the will or trust in the event of an unsuccessful challenge. While New Hampshire recognizes by statute the enforceability of no-contest provisions contained in both wills and trusts, see RSA 551:22, II; RSA 564-B:10-1014(b), these provisions must be interpreted in a manner consistent with statutory exceptions, commonly known as “safe harbor” statutes. See RSA 551:22, IV; RSA 564-B:1-105(b)(14). Proper navigation of in terrorem clauses and the statutory safe harbor statutes can be complex—both substantively and procedurally—particularly where the New Hampshire Supreme Court has yet to issue an opinion applying one of the safe harbor statutes. To avoid being caught adrift, legatees looking to challenge an estate plan containing an in terrorem clause and their attorneys should consider the following.

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