A no contest clause, also called an in terrorem clause, is one of the most powerful tools in New York estate planning. It discourages beneficiaries from challenging a will or trust by threatening to disinherit anyone who contests it. A testator who wants to protect an estate plan, and a beneficiary who is weighing whether a challenge would cost them their inheritance, both need to understand exactly how these clauses work under New York law.
We work on both sides of these questions. We draft enforceable clauses for testators and trust grantors, and we advise beneficiaries on whether a particular step in the Surrogate’s Court would trigger forfeiture. The stakes are the inheritance itself, so the analysis has to be done before anything is filed.
What a No Contest (In Terrorem) Clause Is
“No contest clause” and “in terrorem clause” are two names for the same provision; lawyers and the statute say in terrorem, clients say no contest. It is a provision in a will or trust stating that a beneficiary who challenges the validity of the document forfeits whatever gift they would otherwise have received. In terrorem is Latin for “in fear” or “as a warning,” which is the point: the clause deters litigation by putting the beneficiary’s inheritance at risk. A typical clause provides that any beneficiary who contests the will is treated as having predeceased the testator and takes nothing.
New York recognizes and enforces these clauses, but carefully. Because the consequence is the loss of an inheritance, the courts construe them strictly and resolve ambiguities in favor of the beneficiary. The governing rules are in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).
How New York Treats In Terrorem Clauses
Under EPTL 3-3.5(b), an in terrorem condition in a will is enforceable in New York, and it operates whether or not the beneficiary had probable cause for the contest. A beneficiary who files objections and loses forfeits the bequest even if the challenge was reasonable. That is what gives the clause its teeth. At the same time, the statute reflects a strong public policy in favor of legitimate inquiry into a will’s validity, so it lists specific conduct that does not trigger forfeiture.
| Protected conduct | What it covers |
|---|---|
| SCPA 1404 examinations | The preliminary examination of the attesting witnesses, the person who prepared the will, the nominated executors and the proponents, and, on a showing of special circumstances, anyone else the court finds may have information of substantial importance to the decision whether to object. Document discovery obtained through that process, including the drafting attorney’s file, is likewise protected. |
| Objections based on forgery or later revocation | A contest asserting that the will is a forgery, or was revoked by a later will, does not breach the clause provided the objection is based on probable cause: brought in good faith on reasonable grounds and not as a pretext. |
| Objecting to jurisdiction | Asserting that the Surrogate’s Court lacks jurisdiction over the objectant or the proceeding. |
| Refusing to join in the probate petition | Declining to join in the petition, or refusing to sign a waiver of process and consent to probate. A beneficiary may insist on being formally cited without risking the bequest. |
| Disclosing information | Disclosing to the parties or the court any information relating to a document offered for probate or relevant to the proceeding, for example bringing a later will to the court’s attention. |
| Construction proceedings | Instituting, joining or acquiescing in a proceeding to construe the will or any of its provisions. |
| Infants and incompetents | An infant or incompetent may affirmatively oppose probate through a guardian without forfeiting any benefit. |
The 1404 safe harbor is the one that matters most in practice. It lets a beneficiary investigate the circumstances of execution, including possible undue influence, lack of capacity and fraud, and review the drafting attorney’s file, before deciding whether to mount a formal challenge. Those examinations gather the facts without forfeiting anything, which is why the analysis should be done early. For how they fit into the evidence, see the evidence needed to contest a will and our page on SCPA 1404 examinations.
No Contest Clauses in Trusts
No contest clauses are not limited to wills. They appear frequently in revocable and irrevocable trusts, and New York courts generally enforce them there under the same strict-construction principles used for wills. As trusts become more central to estate planning, a well-drafted clause in a trust protects the grantor’s intentions in the same way. Trust disputes raise their own questions of trustee conduct, accountings and beneficiary rights, and whether a particular trust proceeding is a “contest” or falls outside the clause has to be worked out from the language of the clause itself.
What Counts as a Contest
The most common question we get is whether a particular action will trigger forfeiture. It depends on the language of the clause and the nature of the action. A direct challenge to the validity of the will or trust, meaning objections alleging lack of testamentary capacity, undue influence, fraud, duress or improper execution under EPTL 3-2.1, will trigger the clause if the challenge fails. Objections alleging forgery or revocation by a later will stand on different footing: under EPTL 3-3.5 they do not trigger forfeiture as long as they are based on probable cause.
Not every legal action is a contest. Seeking to enforce your rights as a beneficiary, requesting an accounting from the executor or trustee, asking the court to interpret ambiguous language, objecting to the appointment of a particular fiduciary in certain circumstances, and declining to sign a waiver and consent typically do not trigger forfeiture. But the line between a permissible step and a triggering contest can be subtle, and a beneficiary should not assume a step is safe without having the clause reviewed first.
Drafting an Enforceable No Contest Clause
For a testator or grantor, the clause only works if it is drafted properly. Because New York construes these clauses strictly, a vague or poorly worded clause may be unenforceable or read narrowly. The clause should describe in clear, specific language precisely what conduct triggers forfeiture. It needs adequate “bait”: a meaningful inheritance to the potentially litigious beneficiary, because a beneficiary who is left nothing has nothing to lose and no reason to comply.
The clause should also be coordinated across the will, the trusts and any other instruments so they work together rather than against each other, and the document should be executed carefully, with proper witnessing and, where appropriate, attorney supervision, so that a challenge is unlikely to succeed in the first place.
Advising a Beneficiary Facing a No Contest Clause
For a beneficiary considering a challenge, the analysis is a weighing exercise: the strength of the potential claim against the value of the inheritance at risk. We start by reviewing the will or trust and the specific no contest language, then assess the strength of the potential grounds, such as undue influence or lack of capacity. We determine whether the statutory safe harbors, including the preliminary examinations, allow the beneficiary to investigate without risk, and we lay out the financial trade-off between proceeding and accepting the bequest. The strategy that follows protects the beneficiary’s interests while preserving the inheritance wherever possible.
Frequently Asked Questions
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Is an in terrorem clause the same thing as a no contest clause?
Yes. “In terrorem clause” is the traditional legal name, used in EPTL 3-3.5 and in court decisions; “no contest clause” is the plain-English name for the same provision.
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If I have good reason to believe the will is invalid, can I still forfeit my share?
Yes. Under EPTL 3-3.5(b), the clause operates “despite the presence or absence of probable cause” for the contest. Probable cause protects you only for objections based on forgery or revocation by a later will. For capacity, undue influence, fraud and due-execution objections, a losing contest forfeits the bequest no matter how reasonable it was, which is why the SCPA 1404 examinations should be used to evaluate the case first.
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Do I have to sign the waiver and consent the executor sent me?
No. Refusing to join in the probate petition or to sign a waiver of process and consent is expressly protected by EPTL 3-3.5. You may require the proponent to serve a citation and may appear in the proceeding without contesting.
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Does demanding an accounting or challenging the executor’s conduct trigger the clause?
Ordinarily no. A clause aimed at contests of the will’s validity is construed strictly, and proceedings to compel an accounting, to enforce a beneficiary’s rights under the instrument, or to construe its terms are generally not contests. The precise language of the clause controls, so have it reviewed before you file anything.
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Do the EPTL 3-3.5 safe harbors apply to trusts?
By its terms EPTL 3-3.5 governs wills. New York courts enforce no contest clauses in trusts under the same strict-construction principles and generally look to the statutory safe harbors by analogy, but the protection is less certain than in a probate proceeding, so a trust beneficiary should be especially careful before taking any step.
Talk to Us About a No Contest Clause
No contest clause questions turn on the exact wording of the clause and on Surrogate’s Court practice, and they usually arise between family members at a difficult time. Whether you are protecting an estate plan or weighing a challenge to one, call 212-233-1233 or email [email protected] before you take a step you cannot take back.
