Do you have to worry about that in terrorem clause?

On Behalf of | Jan 15, 2019 | Probate Litigation

There are many valid reasons why an heir or family member may need to bring a challenge to a will or estate plan. Maybe you suspect that the executor or trustee is violating their duty for personal profit. Perhaps there is evidence that there was undue influence on your loved one before changes were made to the will.

It’s also possible that the most recent version of the will resulted from decisions made during a period of diminished capacity for the testator. As a beneficiary or heir, you have the legal right in the state of Ohio to bring a challenge against either the estate plan itself or the executor. However, there are potentially consequences to bringing a challenge.

If your deceased loved one included an in terrorem clause, commonly called no-contest clauses, you may worry about your rights to bring a challenge against the estate. After all, these clauses typically include a financial penalty for anyone who challenges the estate.

How no-contest clauses work

When a testator wants to make sure that their exact wishes get followed by an executor, they include a no-contest clause in their estate plan or last will. The inclusion of such a clause often reflects worry about potentially frivolous challenges motivated by personal greed.

The language in this clause will create a penalty for anyone who brings a challenge against the estate plan. In some cases, bringing the challenge could result in the forfeit of a certain amount of the assets allocated to that specific individual. Other times, a challenge could mean completely losing out on the inheritance outline in the last will.

In specific situations where the discrepancy between expectations and the existing will is significant, a smaller penalty could prove worth the risk. However, in cases of total disinheritance, bringing a challenge may not result in any benefits for the individual challenging the estate, but rather only financial consequences.

Ohio courts almost universally uphold no-contest clauses

Each state has its own approach to dealing with in terrorem clauses. Ohio is one of a few states that very strictly enforces these clauses. While many other states will have exceptions for contests brought with probable cause or in good faith, Ohio does not include any exceptions.

Even if you have evidence of undue influence or diminished capacity, challenging the last will could still result in the loss of your inheritance. In some cases, depending on the language, it may be possible to challenge an executor without challenging the estate itself, thus protecting you from the consequences of an in terrorem clause.

Discussing the issue with an experienced probate litigation attorney who understands how the Ohio courts handle these complicated cases is a good first step to determining what your options may be.


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