I’ve heard it said that there is not a remedy for every wrong, but it has always troubled me that a person "done out" of an inheritance had no recourse.  Unless the person could fit themselves into the very limited circumstances of a third party beneficiary, most of these "disinherited" persons had no remedy agaisnt the person who wronged them.

There is new law in Pennsylvania and this is no longer the case.  In a tremendous victory for the disinherited, the PA Superior Court has affirmed the existence of a tort for tortious interference with inheritance.

"Sometimes people marry for money, and sometimes people kill for money. But when someone has done you out of an inheritance, can you sue for money? That, in a nutshell, is the question of tortious interference with expectation of inheritance."    –   Thus begins  Diane J. Klein in her article, "A Disappointed Yankee in Connecticut (or nearby) Probate Court: Tortious Interference with Expectation of Inheritance – A Survey with Analysis of State Approaches in the First, Second, and Third Circuits"   University of Pittsburgh Law Review Vol. 66:235.

She says of Pennsylvania at p.275: 

"In a pair of recent Pennsylvania Superior Court cases on appeal from the Montgomery County Court of Common Pleas, Judge Zoran Popovich has held that Pennsylvania recognizes the tort, although not in its Restatement (Second) Section 774B formulation.212 Instead, apparently relying on the 1904 case of Marshall v. De Haven, [58 A. 141 (Pa. 1904)] Judge Popovich has identified a Pennsylvania specific version of the tort, available exclusively when the tortious conduct prevents the execution of a will in favor of the plaintiff. This specific version of the tort remedies the specific injury of one who lacks standing to challenge a will, or would not benefit from such a challenge because the instrument under which he or she would benefit was never executed.. . . . until Judge Popovich, apparently no other Pennsylvania jurist regarded Marshall v. De Haven (or Mangold v. Neuman, or Cole v. Wells, other cases cited by Judge Popovich) as recognizing the tort. "

The two cases are: 

Cardenas v. Shober, 783 A.2d at 319-20,  and

 McNeil v. Jordan, 814 A.2d 234 (Pa. Super. Ct. 2002).

The elements of the tort, as set for by the court in Cardenas, are:

     (1)     The testator indicated an intent to change his will to provide a described benefit for plaintiff,

     (2)     The defendant used fraud, misrepresentation or undue influence to prevent execution of the intended will,

    (3)      The defendant was successful in preventing the execution of a new will; and

    (4)       But for the Defendant’s conduct, the testator would have changed his will.



 Writing your will is not a do-it-yourself project.

Words are important. The words that are in your will are very important. That is one of the reasons you should not try to write your own will. Even preprinted forms and computer programs can lead to problems. Take the case of Mr. Tate, recently decided in Somerset County.  Tate Estate (O.C.Div.Som.), 28 Fiduc. Rep. 2d 264.

Mr. Tate died leaving an estate consisting of $700 in household goods, certificates of deposit, a checking account, money market account, life insurance policy dividend and cable refund with a total value of $39,300.

Mr. Tate died leaving a will that was apparently prepared by a local notary (practicing law without a license) who used a pre-printed form and filled in the blanks. Mr. Tate’s will said: "I give, devise and bequeath all my personal property, jewelry and furniture, to my niece, Valarie Nichols." . . . "I give, devise and bequeath all the remainder of my estate, which I may own at the time of my death or to which I may thereafter become entitled, to my friend, Janet Geisel."

So what’s the problem? The question is who gets the $39,300 – Valarie Nichols or Janet Geisel? Why is this a question? Because personal property, as understood in the law, means any kind of property other than real property. Thus, bank accounts, certificates of deposit and other cash items are personal property.

The will says all personal property goes to niece Valerie Nichols – which would mean she would get all of the assets – bank accounts, certificates of deposit, etc. Janet Geisel, the other beneficiary disagreed. She said that since the decedent had no real estate she would get nothing and that what the decedent meant was tangible personal property should go to niece Valarie and everything else should go to friend Janet..

The first point I want to make is that if there has to be a lawsuit over a $39,000 estate, how much do you think is going to be left for any beneficiary? 

What do you think? What did Mr. Tate intend? And how do we know? We can’t ask him.

In this case, the court applied a doctrine of construction called "ejusdem generis" to reach their holding. "Ejusdem generis" is Latin for "of the same kind." As applied to Mr. Tate’s will, this phrase means that "where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." In other words, since the will said "all my personal property, jewelry and furniture" the general words "personal property" should be interpreted to mean property of the same type as jewelry and furniture.

So Janet Geisel gets the $39,300. . . . minus the costs of the lawsuit.

Moral of the story: Writing wills is not for amateurs. You may think youa re being clear, covering all the possiblities, and complying with all the legal requiresmtns. And maybe youa re – but there is no way you can know for sure that what you have written willa ccomplish what you want.

Thank you to the editors of he August 2008 issue of Fiduciary Review, 60 East Penn Street, Norristown, PA 19404 (610) 275-8200.  The August 2008 issue of Fiduciary Review contained a report on the Tate Estate.

Heath Ledger, famous for his protrayal of Ennis Del Mar in Brokeback Mountain (2005). died January 22, 2008.  He had just finished filming the latest Batman movie, The Dark Knight, where he played The Joker:  The Clown Prince of Crime. The Harlequin of Hate. The Ace of Knaves.

According to The New York Times:

"Heath Ledger’s will left nothing to his former girlfriend and their 2-year-old daughter because it was filed in Australia in 2003 and never updated after they became part of his life, The Associated Press reported. A copy of the will, filed in Manhattan Surrogate’s Court, shows that Mr. Ledger, a native of Australia, left everything to his parents and three sisters."

Is this deja vu?  When Anna Nicole Smith died, her Will left everything to her deceased son and made no mention of her baby daughter Danielynn.   

Joann Grossman and Mitchell Gans, in their article, "Heath Ledger’s Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father’s Will, Might Have a Claim to Everything" examines the issues of where Heath Ledger was domiciled, which jurisdiction’s law will govern the distribution of his estate, and whether the tabloid reports about another child fathered many years ealier are true.

Matilda is what the law refers to as a "pretermitted heir" –   a child who was accidentally omitted from her parent’s will.   According to Grossman and Gans, if New York law applies (New York being the place where Ledger was living and where he died) Matilda woudl be entitled to a portion of her father’s estate suince she was born after the execution of his will.

We all seem to take for granted that Matilda is Ledger’s child.  However, to have rights to inherit under  New York law, since Ledger wasn’t married to Michelle Wiliiams (Matilda’s mother), there must be either 1) an adjudication of paternity, 2) a written acknowledgment of paternity, or 3) other "clear and convincing evidence" and the father has "openly and notoriously acknowledged" the child as his own.  Grossman and Gans report that Ledger’s name appears on Matidla’s birth certificate and that he lived with Michelle and Matilda for the first year of her life.

Under New York law, if the testator had no children when the will was executed, the omitted child gets what would have been his or her intestate share of daddy’s etate.  In this case –  that would be the whole thing!    But what about other children?  The tabloids report that Ledger fathered a child in Aurtrailia while he was in high school.

If there is another child, and if Ledger is considered the father under New York law (or maybe under the law of another jursidciton based on a case brought by that child or hir or her mother) then New York law leads to the conclusion that Ledger intended to omit that child, and thus probably intended to omit all children.  That would leave Matilda out in the cold.

What’s the moral of the story?  Keep your will updated!  Don’t fall into the trap of thinking its just a fill-in-the blank form that, once completed, need never be looked at again!  Estate planning really has very little to do with forms.  Ask Matilda.


UPDATE:  Johnny Depp, Jude Law, and Colin Farrell, the 3 actors who stepped in to complete Heath’s role in "The Imaginarium of Dr. Parnassus" donated thier earnings from the film to Heath’s daughter Matilda.

Blogging credit to David S. Luber and Gerry W. Beyer.

Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCoy LLP, has published "Reducing Estate and Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation and Arbitration"  in the Cardozo Journal of Conflict Resolution, 9 Cardozo J. Conflict Resol. 237 (2008).

He suggests six methods to reduce the risk of litigation with respect to trust and estate matters:

1.  Advise Inheritors of Inheritance Plans.    Especially when children of the decedent are treated unequally, will contests and litigation arise from disappointed feelings of entitlement.  Telling the children ahead of time what their shares will be may avoid a later dispute. Blattmachr even suggests that one could enter into a contract (for consideration) with such a person that he or she will not object to the validity of the document. (Of course, as Blattmachr says, "advising a child that he or she will not receive an equal share may have adverse effects even if it prevents litigation after death."   You think?)

2.  Use a Revocable Trust in Lieu of a Will.  Since a revocable trust can be funded and operate during lifetime, it is difficult to contest on the grounds that the individual was unaware of its terms.  When the Settlor of the trust dies, there is no need to begin a court proceeding to "prove" the validity of the trust, such as there is for a will.

3, Use an Irrevocable Trust in Lieu of a Will or Revocable Trust.  An irrevocable trust is even less likely, in Blattmachr’s view, to be challenged than a revocable trust.  Irrevocable trusts can be drafted in such a way so that transfers of property to them are not completed gifts.  Alternatively, making a transfer that is a completed gift, paying gift tax, and filing a gift tax return disclosing details may be additional evidence that the transfer was truly intended.  Again, Blattmachr believes that a lifetime trust that is significantly funded is less likely to be challenged.

4.  Use an In Terrorem Clause.  If the testator lives in a state that will enforce it, an in terrorem clause (or disinheritance clause) could be used.  Or the testator could direct that his will be probated in a state that does enforce such clauses.  A lot of trust and estate litigation is not about the validity of the document, it is about its interpretation or about actions taken by the fiduciary.  In order to reduce this type of litigation, an in terrorem clause can cause a forfeiture of a beneficiairy’s interest if such a challenge is made.

5. Use Mediation or Arbitration Provisons.  Arbitration or mediaiton cannot be used with respect to the challenge of a document’s validity unless the parties agree to it. Using an in terrorem clause to cause forfeiture if the parties will not participate can be used.  This could stop claims that are filed only to harass other beneficiaries or to delay distributions to others.  Another approach would be having the parties enter into a contract agreeing to arbitration before the transfer.

 6. Use a Conidtion Precedent to a Beqeust as an Alternative Method of Causing Participation in Mediation or Arbitration.   Since a person cannot be forced to participate in arbitration or mediation unless the law provides for enforcement, consideration must be given to how to get parties to use these methods.  One can use the carrot instead of the stick. Parties can be gvien a benefit if they consent to use arbitration or mediation instead of resorting to court.

What a great idea!   Check out this site:  eDivvyUp   Its an online auction platform to use to equitably divide tangible personal property among beneficiaries.  

"eDivvyup is the leading online auction site for equitable property distribution. The concept was created to assist Estate Planners, Estate Executors or other individuals dealing with the equitable distribution of personal property. eDivvyup is focused on providing an easy-to-use solution to reduce the stress that accompanies the responsibilities of the property division of an estate. "

Our last post on this subject, Fighting over the Teapot, discussed the family feuds that can come up over dividng the personal belongings of the deceased.  Here is what the folks at eDivvyup say:

"eDivvyup is a new completely online application that conducts a family auction for the purpose of allowing family members to divvy up a loved one’s personal estate. Baby Boomers are at the point in their lives where their parent(s), are unfortunately going to pass away. Although this is the natural course of life, it can be a painful time.

While this new milestone for Baby Boomers is a point of significant loss, it has also proven to be a stressful time where in-fighting can occur among siblings over the prized personal possessions left behind. Family members who once shared rooms, laughter and dreams can end up enemies while fighting over a watch or a chair that once belonged to mom or dad."

If you try it in an estate you’re settling, let us know how it works.


See this September 8, 2008  post:  Dividing Personal Prorerty  at WIlls Trust & Estates Prof Blog  

How many families do you know who fought over the settlement of their Mom and Dad’s estate? In my experience, these family feuds are often over things – not money. Who gets the sterling flatware and who gets the drop-leaf table are points of contention that rip apart the family fabric.

Mom and Dad, why on earth do you think that children who fought over who gets the last cookie and who, as recently as last week, fought over who gets to stay in the beach house the third week in August will somehow miraculously change when you die? I have news for you. When you’re gone, they will fight worse than ever. Face up to it now.

Even in estates where there are no tax issues – let’s say the total value of the estate is less than $2 million – disputes over personal property can cause permanent schisms. Each child wants the teapot that was the center of every family dinner and embodiment of all memories of childhood love. The executor has to decide who gets it. What a job that is! The only way for an executor to escape with his skin is often to sell the piece – then everyone can be equally angry.

If tempers can flare over items of sentimental value, watch out when the monetary value of the disputed items rises or when the estate exceeds the federal exemption for estate tax.

Mom and Dad, don’t bring this problem on yourselves. You may have heard at bridge club that you shouldn’t mention these things in the will because then your heirs have to pay tax on them. Even worse, some estate planners might tell you that too. This is wrong. A decedent’s property owned at death is subject to estate and inheritance tax. It doesn’t matter whether the property is specifically mentioned in the will. What these “advisors” really mean is that if it isn’t mentioned in the will, it’s easier to cheat on the taxes by omitting to report the item. This is tax fraud, pure and simple. The same tax is due on a $10,000 bank account as on a $10,000 oriental rug, and it is absolutely fair and just that it be so.

Tempers may also rise when you or your Executor low-ball the value of valuable items, asking for “low” appraisals for “estate tax purposes” to try to reduce taxes. Then the property is divided up among the children using the appraised value. Surprise, surprise — a child sells the breakfront that was part of his share for double the appraised value and his siblings call foul.

The IRS is not as dumb as you think. Most people who have valuable collectibles – jewelry, artwork, antiques – realize that they must be insured. Your average homeowners insurance policy doesn’t cover the loss of these items unless they are separately listed and valued. If you don’t report the jewelry all the IRS has to ask for is a copy of the homeowner’s policy. The IRS knows that if you live in a $300,000 house, have three expensive cars, belong to the Country Club and have a winter place in Florida then your household furnishings are worth more than a couple of thousand dollars.

If you’re afraid to talk to your kids about it, how do you think your executor (who may be one of the kids) is going to feel about it? The best thing you can do is make list of items and who should receive them. Allow your children to have input. You be the one to settle the disputes. Then make the list part of your will or at least make it a non-binding memorandum mentioned in your will.

If you can’t bear to talk about it, at least put a mechanism in your will for the division of the property. Maybe each child selects items in rotation. Who gets first choice is determined by lot.

Keep this in mind too: putting someone’s name on an item with a tag is legally meaningless. All property is passed under the will or under the intestacy statute if there is no will. It doesn’t matter if “Mom promised it to me” or if “Dad told me it would be mine.” If all the other beneficiaries agree, you may be ok. But if there is any dispute, such oral representations, tags, notes, and letters are completely without any legal effect.

Also, there are the people who say “Grandma gave it to me years ago, I just left it in her house until she died.” Even if this is true, the IRS takes the view that this is not a completed gift. A completed gift of personal property, like a corner cupboard, requires delivery. How can you prove delivery in this instance? Even if you can prove delivery by some ingenious means, to the IRS, it still looks like a transfer with a retained right to the use of the property for life and is still subject to tax in the estate.

If you have a $40,000 grand piano, by all means, dispose of it in your will. If you want your daughter to have it, bequeath it to her. The best gift you can give to your beneficiaries is to make a clear and incontestable disposition of all your property, including jewelry, furniture, collectibles and artwork. The last thing you want to bequeath to your children is a battle that will drive them away from mutually supporting each other.

This excellent article published in The American Journal of Psychiatry (164:722-727, May 2007) gives advice on how to document your client’s capacity. Check it out:

Assessment of Testamentary Capacity and Vulnerability to Undue Influence by Kenneth I. Shulman, M.D., F.R.C.P.C., Carole A. Cohen, M.D., F.R.C.P.C., Felice C. Kirsh, LL.B., Ian M. Hull, B.A., LL.B., and Pamela R. Champine, J.D., LL.M.

The authors state:

"We can expect challenges to testamentary capacity to increase during the coming decades as the number of older adults increases. The increasing complexity of modern families, where asset disposition is sensitive and complicated, may lead to feelings of rejection and injustice and result in more challenges. Finally, the high prevalence of cognitive impairment and dementia in older adults creates a fertile environment for challenges to wills. It therefore behooves psychiatrists and other experts to be aware of the legal, medical, and psychiatric issues that underlie the assessment of testamentary capacity and the role of undue influence—two concepts that are inextricably linked and often combined in legal challenges to wills. "

                                                                   *       *       *        *       *

"The assessment of testamentary capacity and its interrelationship with vulnerability to undue influence bring together the medical and legal domains. The psychiatric and medical experts’ role is primarily to help lawyers and the courts make the best determination of testamentary capacity and to assess the role of undue influence. As the number of older people increases in the coming years, clinicians will likely be involved in these determinations with increasing frequency. Research in this area is needed, and it should involve a collaboration of the medical and legal domains to provide clearer guidelines for the assessment of these complex issues in individual cases (26). Increased awareness within the legal profession of the importance of establishing testamentary capacity at the time of the execution of a will may lead to a greater demand for contemporaneous assessments and possibly avoid a court challenge at the time the will is brought for probate. Proposals to develop "lifetime capacity assessments" for this purpose merit exploration."

 You can download a pdf copy of the article for freeClick here


Growing Old and Issues of Diminished Capacity

The law assumes that adult individuals have mental capacity, that is, they are capable of making rational decisions on their own behalf. Note we say they are “capable” of making rational decisions. The law doesn’t expect or require that they actually make rational decisions. Competent individuals of all ages, old and young, have the right to make foolish, eccentric or idiosyncratic decisions. For better or worse, all of us are free to make bad decisions.

People Vary
A persons’s capacity may change from day to day (or even during the day), depending on the course of the illness, fatigue and the effects of medication. Some folks have good days and bad days. Some are more alert in the morning; some have their best time in the afternoon. Legal competency is not something that a person either has or doesn’t have –it can be quite variable.

Standards Vary
Whether or not a person is legally competent depends on the purpose for which the capacity is being determined. The law provides a different standard of competency for 1) making contracts, 2) making wills, 3) having a guardian appointed, 4) and giving informed consent to medical treatment.
Whether or not a person is competent is a legal determination, not a medical one. Medical testimony is important, and is always sought by a court in making the determination of capacity. Since the law has many different defined standards depending on the action being taken, the determination of whether or not a person is competent to do a certain thing is always a legal decision.

Lowest Standard
What surprises most people is that the capacity to make a will, called testamentary capacity, is the lowest level of capacity in the law. All that is required is that the person making the will (1) understand in a general away, the nature of his property, (2) knows who are the “natural objects of his bounty,” that is, the persons who would normally be his heirs, and (3) must be able to comprehend that he or she is making a will.

A person who has had a stroke, or is diagnosed with Alzheimer’s disease, may still have sufficient capacity to make a will even though there is some impairment of speech, some impairment of thought processes, and/or some physical impairment. The fact that a client does not know the year or the name of the President does not necessarily mean that she can not make a will. Since signing a will does not require a great deal of capacity, the fact that the next day the person does not remember the signing of a will does not invalidate the will if he had the minimum required capacity the day before when he signed it.

Continue Reading Capacity to Make Will

For your clients who ask this question:

     LITIGATION, n. A machine which you go into as a pig and come out of as a sausage. 
                                                                              Ambrose Bierce, The Devil’s Dictionary

When people you love die, you think you’ll need a long time to get over it. Reading the will may change your mind. If your step-mother gives all of your deceased father’s assets to her kids instead of to you, you may shift from sad to mad in a heartbeat. But they were her assets and it was her choice to make.

Where was the lawyer? He drafted a will for Dad in which Dad gave everything to your stepmother. Didn’t your Dad want to make sure you got something? What did the lawyer do to protect you? Can you sue the lawyer for doing a lousy job?

Usually, only parties to a contract may sue for breach of contract or for negligence. These parties are said to have “privity” and be in such a relationship that obligations and duties are owed to one another. The parties to the contract to draft a will are the lawyer and the testator. The testator engages the lawyer to prepare the will in exchange for payment of the lawyer’s fee. Usually if an error is discovered, the testator is dead; so the testator isn’t around to sue the lawyer when things go wrong. Can the beneficiaires of the will, third parties to the contract, sue the lawyer who drafted the will? Maybe. Surely there must be some redress. Otherwise lawyers would never be responsible for errors made in wills if the lawyer’s only duty is to the deceased.

Third party beneficiary rights were first established in Pennsylvania in an 1897 case, Lawall v. Groman. Mrs. Lawall sold real estate to her brother in return for a promissory note and a lien on the property. The brother’s lawyer wrote the papers. Mrs. Lawall asked for a first lien, and her brothers’ lawyer assured her she would have a first lien. As it turned out, Mrs. Lawall had a third lien which was practically useless. She sued her borthers lawyer and the court was asked to determine if she had standing to sue since the lawyer only had a contract to represent her brother.

She won the lawsuit because the court said that “one who undertakes to perform a service for another, even without reward, is bound to exercise reasonable care and can be held responsible for misfeasance, though not for nonfeasance.” (Misfeasance means doing something poorly. Nonfeasance means not doing it at all.) Lawall requires a specific undertaking on the attorney’s part to perform a specific service for a third party, coupled with the reliance of the third party and the attorney’s knowledge of that reliance in order for the third party to bring suit. In the case of wills, beneficiaries don’t usually have a conversation with the lawyer as Mrs. Lawall had with the brother’s real estate lawyer, and therefore will beneficiaries were not able to sue using the theory of that case. The lawyer escapes liability.

A refinement was added in 1950 in Spires v. Hanover Fire Insurance Co. This case held that for a third party beneficiary to have standing to recover on a contract, both parties (attorney and testator) must express an intention that the third party be a beneficiary to whom the attorney’s obligation runs in the contract itself. In other words, the obligation to the third party must be created, and must affirmatively appear in the contract between the lawyer and the client.

Under the Spires analysis, a beneficiary of a will would be a third party beneficiary with standing only if the testator and the attorney had a written contract to write a will, and the contract indicated the intention of both parties to benefit the legatee. The fact that the beneficiary is named in the will is not relevant to third party status. Thus, it is very unlikely that a beneficiary could ever bring suit under the Spires requirements. The lawyer still escapes liability.

The Spires rule was overturned in 1983 in Guy v Leiderbach and Guy remains the rule today. In Guy, the PA Supreme Court decided to adopt the policy in the Second Restatement of Contracts where intended beneficiaries are given the right to sue. “The beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” (How’s that for legalese?)

The result is that beneficiaries named in the will are given standing to sue the drafting attorney as third party beneficiaires. As for unnamed beneficiaries, it is up to a court to decide if they are intended beneficiaries or not. Unintended beneficiaries may not bring suit. The lawyer may or may not escape liability.

The theory of the court in the Leiderbach case was that justice balances the needs of the individual and of society. On the one hand, beneficiaries who receive less than a fair inheritance due to the actions of the attorney deserve redress. On the other hand, the public needs affordable legal assistance. If a drafting attorney could be sued by anyone and everyone who thinks the testator intended to leave him something in the will, the lawyer’s job becomes almost impossible. The amount of paperwork, contracts, and necessary protections would make getting a will drafted prohibitively expensive. Legal assistance gets to be unaffordable when the ability to sue the lawyer becomes the right of every being on earth for every will ever written.

The court opined that strict privity favors the public too much, while allowing every person on earth to sue the writer of a will favors the individual too much. Limiting the ability to sue the lawyer to those with privity and to intended third party beneficiaries is the court’s latest attempt to balance the scales. Do you think they are balanced?

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.