Published in the Union Leader (9/13/2020)
Q: My dad changed his trust to reduce my share shortly before he died, at a time when he was being treated for dementia. An attorney told me that the trust contained an in terrorem clause, so I cannot contest its validity. What does that mean—an in terrorem clause? And, are there steps I can take without triggering this clause?
A: In terrorem is Latin for “into/about fear.” Really what this means is that your father’s trust contains a “no contest” clause. A no contest clause in a will or trust can provide that, if a beneficiary takes a specified act, directly or indirectly, that is contrary to the estate or trust administration, including contesting an instrument’s validity, her inheritance rights will be reduced or, more often, eliminated. These provisions can be drafted to disinherit, not only a contestant, but also others in her family. Essentially, if your trust challenge is unsuccessful, you likely will not receive any benefit, let alone your reduced share.
Although in terrorem clauses are to be honored to the extent possible, there are statutory exceptions, commonly known as “safe harbor” provisions, under which a no contest clause will not be enforced. For example, the law provides “safe harbor” to a person who initiates or cooperates in any action to determine whether a pending or proposed motion constitutes a contest under the terms of the no contest provision. Thus, even if a will or trust contains an in terrorem clause, there is a mechanism for beneficiaries to seek the court’s guidance as to whether a proposed or pending legal action will trigger any in terrorem clauses in the relevant documents. Actions for construction or interpretation of the terms of the instrument are also exempt. Additionally, if the will or trust is determined to be invalid, the no contest provision is unenforceable. And, in an action challenging a fiduciary’s conduct, an in terrorem clause is unenforceable to the extent the fiduciary breached his duties or committed a breach of trust.
In terrorem provisions are increasingly common in estate plans and pose a significant risk for any beneficiary contestant who is to receive under the plan. Proper navigation of in terrorem clauses and the statutory safe harbor provisions can be complex—both substantively and procedurally. Therefore, it is important to contact an attorney to understand the scope of these clauses and the various safe harbor options.
A.J. Schweitzer can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.