A will reflects the last wishes of the deceased, and this is honored by the court system in probate, where the will controls the entire process. However, it’s also important to ensure that the will is legal and authentic.
To do that, the court allows the beneficiaries or other third parties to challenge a will in probate. But when a will is challenged, this can delay the division of assets and can even cause the estate incur expenses.
There can be a way to discourage people from suing and challenging a will without taking away their constitutional right to correct a wrong through the court system. That is through creating an ad terrorem clause or a no contest clause.
What is an ad terrorem or no contest clause?
An ad terrorem or no contest clause is a section or provision in a will that discourages a beneficiary from contesting or challenging the will by providing that they lose any gifts that they would otherwise receive. It gives the person something to lose, which makes them think twice about suing over a will.
For example, a person who has two children gives $90,000 to one and $10,000 to the other. This may seem unfair for the child who gets the lower amount, which might prompt them to challenge the provision. But if there is an ad terrorem or no contest clause, the child will be discouraged to file a contest to the will because otherwise, they lose the $10,000 being gifted to them.
However, if the person does pursue challenging the will and wins the case, they can get more than the value of the gift in the document. The ultimate decision will be up to the person who wants to contest the will. They can’t be prevented from filing, but having an ad terrorem clause discourages them from doing so.
What one can do is to make sure that the will document is legal in all aspects and clear as to all the provisions to lessen the likelihood of the contester winning their case and preventing them from receiving their gifts.
While people have the right to contest the provisions of a will and one cannot prevent them from doing so, the very least that can be done is to discourage them from filing a lawsuit through an ad terrorem or no contest clause.