Seth A. Kaplan on In Terrorem Clauses
I've spoken previously about in terrorem (or "no contest") clauses, most recently here. In this month's Illinois State Bar Association Trusts & Estates newsletter, Seth A. Kaplan reviews the Illinois caselaw on this subject. Mr. Kaplan's conclusion:
To date, no Illinois Appellate Court has enforced an in terrorem clause against a beneficiary.
Basically, courts have gone out of their way NOT to enforce these types of clauses, relying on arguments like "the clause is against public policy". While this is bad news for people who want to limit the ability of their beneficiaries to contest provisions of their Will, I would point out that in terrorem clauses can still serve an important function in cases involving unsophisticated beneficiaries, who don't realize that these provisions are unenforceable.
I wish there was a mechanism for essentially certifying in terrorem clauses during the testator's life, either by a court proceeding or by a visit from a neutral third party (sort of a probate arbitrator). The judge or probate arbitrator could issue a ruling stating that he or she has examined the testator and the testator's situation, and found that the testator is acting of his or her own volition, without undue influence. Maybe the reasons for the disinheritance could also be set forth.
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