In Terrorem Clauses in Maryland Wills

Except for what goes on in criminal courts, legal proceedings do not generally make good television or good plot-driven fiction.  Unless you are exceptionally long in the tooth and longer in the attention span, you have probably not read Bleak House by Charles Dickens; it is the only fictional representation of a probate court in mainstream popular culture.  Therefore, the public is more familiar with the mechanisms and terminology of criminal law than of civil law.   We have heard of defendants pleading “no contest” in criminal cases; this is where a defendant does not deny the charges and accepts criminal penalties, but also does not admit fault for the crime, thereby giving himself or herself a chance of prevailing in civil court if the victim of the crime files a personal injury lawsuit.  “No contest” means something else in probate law.  In fact, the Latin terms are different.  “No contest” in criminal law is called nolo contendere, but a “no contest” provision in a will is called in terrorem.  For help writing effective in terrorem clauses, if you decide to include them in your will, contact a Washington, D.C. estate planning lawyer.

Why Do People Include in Terrorem Provisions in Their Wills?

Sometimes people challenge their relatives’ wills because they are mad that they didn’t get an inheritance.  Then there are the relatives who get an inheritance but challenge the will anyway, because they did not inherit as much money as they were hoping to inherit.  The purpose of in terrorem clauses is to prevent the latter type of challenge.  In an in terrorem clause, you say that, if a beneficiary of your will challenges the will and the court rules against him or her, the beneficiary loses the inheritance originally listed in the will.  Usually, the threat of losing their inheritance entirely is enough to make beneficiaries be content with the inheritance the testator left for them.

How to Ensure That the in Terrorem Clause in Your Will Is Enforceable

Some states, such as Florida, universally refuse to enforce in terrorem clauses because they consider them unfair to heirs.  Maryland takes a more nuanced approach to in terrorem provisions.  Beneficiaries can still keep their original inheritance after an unsuccessful challenge if they can show that they had probable cause for bringing the challenge, such as if they reasonably believed that the testator signed the will under undue influence.

Therefore, the burden is on testators to make their wills challenge proof.  You can do this by being as specific as possible about which actions count as challenges which would trigger the in terrorem clause.  You can also prove that you were of sound mind when you wrote the will by keeping a medical evaluation from close to the date of signing the will in the same folder with your will.

Contact Tobin O’Connor Ewing About Preventing Challenges to Your Will

A Washington, D.C. estate planning attorney can help you draft a challenge-proof will.  Contact Tobin, O’Connor, and Ewing in Washington, D.C. or call 202-362-5900.

Source:

peoples-law.org/contesting-will-caveat-proceeding