We usually think of a person’s will as a financial document used to make sure his or her estate is distributed according to his or her wishes. The will can also be used as a constructive tool or a destructive weapon to reach other goals, which often do not involve money.
Eddy M. Elmer, in his article, “The Psychological Motives of the Last Will and Testament” describes the use of wills. Used positively, a will can be used to foster a sense of continuity for the survivors and to preserve family relationships. Used negatively, through imposed conditions, disinheritance, unequal treatment, and attaching “strings,” a will can be used to control from the grave and continue dysfunction in a family.
With the power to make a will comes the right to disinherit. By the common law, anyone may give his estate to a stranger, and thereby disinherit his heir apparent. In the words of Mr. Elmer, “disinheritance is one of the more vengeful goals of will-writing.”
Most states include protections for a surviving spouse so that the spouse cannot be completely disinherited, although in Pennsylvania, the spouse has a right to receive only one-third of the deceased spouse’s estate. In all the states except Louisiana, children can be disinherited.
When it is the intention of the person making the will to disinherit a child or someone who is an heir at law, it is important to make it clear that the omission of the person from the will is not a mistake or oversight. For this reason, sometimes wills provide “I give my son John $1.00.” Leaving someone a dollar is not intended to be a gift to them. It is a formal statement of disinheritance. Similarly, a will could provide “I leave nothing to my son John,” or “I am leaving nothing to my son John, for reasons known to both of us."
Questions can arise about these provisions. If John predeceases the parent who made the will, do John’s children inherit? Is the disinheritance of John to be assumed a disinheritance of his children also? The will must be drafted to make the answer to this question clear.
It is best not to give a reason for the disinheritance. If a reason is given, and it is proven to be a mistake of fact, then there could be a dispute about the validity of the disinheritance. For example, a will could provide “I give nothing to my son John because he is a convicted felon.” If John is not a convicted felon, is he still disinherited?
A writer of a will can also disinherit anyone who challenges the validity of the will in what is called an "in terrorem" clause. "I leave anyone who challenges this will or any part of it one dollar." Sometimes these clauses are called “no contest clauses.”
An in terrorem clause (pronounced (in tehr-roar-em) is from Latin for "in fear." It is any 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 disinherited or given $1.00, instead of receiving his or her stated bequest in the will.
An in terrorem clause is intended to discourage beneficiaries from legal battles after the testator is deceased. However, if the will is challenged and found to be invalid (perhaps because of lack of capacity or undue influence), then the in terrorem clasue which was part of the failed will fails as well. Whether or not to challenge the will then becomes a calculated risk.
An in terrorem clause is not much help to disinherit a child or other beneficiary entirely. It is most useful when the child or other beneficiary receives something meaningful under the will, but just less than what he or she might feel entitled to. If you completely disinherit someone, and include an in terrorem clause in the will, there is not much of a threat. If the person you are concerned about challenging the will is not a beneficiary, he or she has nothing to forfeit (and nothing to “fear”). So an in terrorem clause would have no effect on him or her. For the clause to work, you have to leave enough to the disfavored beneficiary so that the beneficiary has too much to lose if the challenge fails.
In Pennsylvania, under the 1994 changes to the Probate Estates and Fiduciaries Code, “[a] provision in a will or trust purporting to penalize an interested person for contesting the will or trust or instituting other proceedings relating to the estate or trust is unenforceable if probable cause exists for instituting proceedings.” Probable cause, in general, is when a reasonable person, properly advised, would conclude that there is a substantial likelihood that the will contest will be successful. The policy behind allowing this probable cause exception is to ensure that a person is not intimidated into remaining silent out of fear of losing a bequest where there is a good faith belief that the will is invalid.
An in terrorem clause may be viewed favorably as a means of discouraging frivolous litigation. On the other hand, courts tend to construe the clauses strictly because their enforcement causes a complete forfeiture of the claimant’s interest, a harsh result. There are many court cases on what should be the fair boundaries of the power to condition a gift on not contesting a disposition. The law frowns on a provision which seeks to repress a search for the facts surrounding a disposition in a will. Florida and Indiana have statues that completely void the use of in terrorem clauses.
It is unhealthy for the living as well as the dead if we use our death as an occasion to get even and settle petty accounts — with our own children, no less.