Lawyers like to use Latin terms because: 1. It makes them feel smart 2. It makes clients think they are smart 3. They can charge clients to explain what the terms mean (after they look them up.)
In terrorem is a Latin term meaning "in fear." It applies to clauses in wills or trusts which are intended to persuade people not to challenge wills or trusts. Such challenges are uncommon, because the person contesting the will or trust has the burden of proof, which can be difficult to sustain.
An in terrorem clause in a will or trust might read:
"If any person shall at any time commence proceedings in any court to have this will (or trust) set aside or declared invalid or to contest any part or all of the provisions included in this will they shall forfeit any interest in my estate (or trust.)"
In terrorem clauses are enforceable in Massachusetts. Many probate judges do not like the clauses and construe them narrowly. They are not valid in Florida or Indiana.
If a will is challenged and it is found that the testator was incompetent, or subject to undue influence, or the will was not properly executed, then the in terrorem clause is not applicable.
One who challenges a will or trust which contains an in terrorem clause does so at his peril, Samuel A. Tamposi, Sr. was a wealthy real estate developer in Nashua. and also owned an interest in the Red Sox. His daughter, Elizabeth, sued her brothers, Sam, Jr., and Stephen, trustees of her father's trust, claiming that she was entitled to a distribution of $2,000,000 and making other accusations.
The Judge of the Hillsborough County Probate Court determined that in bringing the litigation Elizabeth had violated the in terrorem clause of her father's trust, and that therefore she forfeited all interest in the trust. Her interest in the trust was some $17,000,000. The decision will probably be appealed, but it appears to be well-grounded.
An in terrorem clause is often used where a will contest is anticipated. In some states (but not Massachusetts) it is possible to have a court determine before death whether a will is valid. I will discuss this further on our website.
