It is not uncommon for a family member to disinherit another in their Last Will and Testament for fears that the person may be a spendthrift or squander monies that the person signing the Will (Testator) worked their whole lifetime to amass. Another method of disinheritance occurs when a Testator seeks to disinherit a family member whom they believe will object to the Will’s admittance to probate.
Estates, Powers and Trust Law (EPTL) Section 3-3.5 provides for the creation of an in terrorem clause in the context of a New York Last Will and Testament. The basic verbiage within the context of this clause (which I include in my Wills) usually states that “…If any legatee, devisee, or beneficiary of this my Last Will and Testament directly or indirectly challenges or contests this Will or any of its provisions, or attempts in any way to oppose or set aside the probate of this Will or impair or invalidate any of its provisions, the provisions made in the will for any of the legatees, devises or beneficiaries shall be revoked.” Essentially, this clause provides a strong deterrence to a beneficiary’s challenging of the Will, especially if the Testator (and the attorney-draftsperson) is fully satisfied that the document was validly executed and that the Testator was of sound mind and memory.
It should be noted that as the result of a recent case decided by the New York Court of Appeals in Matter of Singer (13 N.Y.3d 447 (2009)), the in terrorem clause was to be more narrowly construed, and could be challenged by objectants to the Will in certain circumstances.
As a result of this case, EPTL 3.3-5 and SCPA 1404 was amended to give objectants further latitude in deposing the witnesses and attorney-draftsperson of the Will, while at the same time preserving their rights to inherit. Naturally, this application must be reviewed on a case-by-case basis.
If you would like to contest the validity of a Will, or are interested in drafting a preparing a Last Will and Testament, please contact an experienced estate attorney at the Law Offices of Michael W. Alpert by calling (631) 225-4603 or e-mail at malpert@alpertlegal.com.