If you have executed an estate plan then you have probably given a lot of thought to how you want distribute your hard earned assets when you are gone. Like most people, you would probably be upset if anyone tried to override the decisions you made regarding your property. Once you are gone, how can you discourage anyone from challenging your wishes in court?

The most common method is to include in your will or trust an in terrorem clause. This Latin term has nothing to do with horror films. Black’s Law Dictionary defines the term as “a provision designed to threaten one into action or inaction…” Typically, an in terrorem clause (sometimes known as a “no challenge clause”) threatens to disinherit anyone who challenges some aspect of a will or trust. Lawyers may draft in terrorem clauses to be narrow or broad. For example, a broad in terrorem might threaten to completely disinherit anyone who brings a challenge of any sort while a narrower in terrorem might threaten to reduce (but not entirely eliminate) an intended inheritance for anyone who challenges a specific aspect of a will or trust.

Are in terrorem clauses effective? It depends. An interested party who has been left out of a distribution scheme has little to lose by challenging. An in terrorem tends to be more persuasive against someone who will receive a large sum (but smaller than expected) but only if he or she refrains from challenging. Furthermore, courts are sometimes reluctant to enforce in terrorem clauses.

Here in Illinois, courts will generally hold as valid those conditions in a clause against contesting a will or attempting to set it aside. Even where they are held valid, though, conditions against contests are so disfavored by the courts that they are construed very strictly. This view is guided by the well-established rule that equity does not favor forfeitures, and in construing conditions, both precedent and subsequent, a reasonable construction must be given in favor of the beneficiary. In re Estate of Wojtalewicz, 93 Ill. App. 3d 1061, 1063, 418 N.E.2d 418 (1981). In other words, in terrorem clauses are enforceable in Illinois but challenging a will risks forfeiting a right so courts interpret these clauses strictly and err in favor of the challenger.

Because in terrorem clauses are generally enforceable and because they can be effective, we usually include them in the wills and trusts we draft. The tool that most effectively discourages challenges, however, is simply a good estate plan that has been thoroughly considered and skillfully drafted. We review a lot of estate plans at Schmidt & Lerner, LLC. We see a lot of good work that other attorneys have drafted but we also see a lot of inexcusably shoddy estate plans. Choose your estate planning lawyer carefully and give your estate plan careful thought and attention.