in terrorem clause

in terrorem clause

(in tehr-roar-em) n. from Latin for "in fear," a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will. The clause is intended to discourage beneficiaries from causing a legal ruckus after the will writer is gone. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause also fails. So a prospective challenger takes his/her chances. The courts have ruled that merely putting in a claim for moneys due from the estate is not a legal challenge to the will itself, and is permissible without losing the gift. (See: will, will contest)

References in periodicals archive ?
Engelhardt, supra note 10, at 560-61 (describing how the few decided cases to discuss forfeiture clauses in trusts "support the proposition that courts will construe an in terrorem clause the same in a will as in a trust" and that "[c]ommentators have reached the same conclusion"); Joyce Moore, Will Contests from Start to Finish, 44 St.
supra note 5, at 228-29 ("Where a will pours over into an established trust, at least one court has refused to apply the in terrorem clause in the will to a contest directed at the trust.
The Fine Art of Intimidating Disgruntled Beneficiaries with In Terrorem Clauses, 51 SMU L.
2007) ("We need not determine whether in terrorem clauses are unenforceable in Alabama when their enforceability is specifically challenged, because we conclude that the will contest did not fall within the proscriptions of the in terrorem provision in this case.
See Engelhardt, supra note 10, at 542 ("Limited case law and virtually no statutory law addresses the enforcement of in terrorem clauses in trusts.
However, the IRS further contended that a beneficiary would be extremely reluctant to go to court because, under the in terrorem clause in Article XXVI, the beneficiary would forfeit all of his or her rights under the trust by going to court.
The definition also might not cover other attempts to discourage judicial review that would be less baldly self-serving but no less reckless: consider, for example, the possibility that an in terrorem clause might be inserted in a budget or appropriations bill (or, still more recklessly, a bill in the U.
On the surface, in terrorem clauses seem especially troubling, because they represent an attempt by the legislature to prevent the judiciary from exercising a power that rightly belongs to it (whereas poison-pill clauses invite the judiciary to exercise that power).
But for in terrorem clauses to be unconstitutional and poison-pill clauses constitutional is an impossible result.
When he died in 1951, his 125-page will contained an in terrorem clause (Latin for ``in terror''), which calls for any heir who challenges the document to be disinherited.
The only way you can get rid of the in terrorem clause is to knock down the will.
Challenges of in terrorem clauses are rarely successful, but the Hearst case is not unusual.