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Interrorem Clauses
Your son Bill always needed your help. As a youngster he ran out of his allowance. When he was older you and your wife helped him. You were always glad to do it since Bill was a. lovable youngster and a very nice young man. He showed bis appreciation, but his wife did not. You and your wife didn't like the marriage too much be cause you felt that Bill's wife was too bossy, but she was Bill's wife, so you kept your hands off. As long as Bill was happy being bossed, you let him be bossed. In making your WILL, however, you want to distribute your legacies in such a way that discrepancies in your gifts to your children will be equalized. At the same time, you know that Bill's wife, pretty little vixen that she is, will kick up a terrible fuss if Bill receives a dime less than his brothers and sisters. Bill himself will accept your wishes without a murmur since he remembers all that you have done for him and he knows he received a lot more help than his brothers and sisters.
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Talking matters over with your wife, she points out that Bill's wife's brother, an up-and-coming lawyer, will surely file objections to your WILL and will involve your estate in costly litigation. To guard against any such objection, your lawyer tells you to insert a clause providing that any legatee who objects to the probate of the WILL will forfeit his legacy. The laws in the different states are not uniform as to just which conditions are valid when they provide for the forfei ture of an inheritance in the event of a contest of a WILL bya named beneficiary. The earlier rule, known as the "English rule," was that such a clause did not effect a forfeiture of the inheritance if there was probable cause for contesting the probate.
However, the majority rule in the United States is that the testator in making his WILL has a right to impose on his gifts a condition that the WILL be sustained. A clause providing for a forfeiture by the legatee or devisee upon the institution of a contest of the WILL with a gift-over to some other person, is generally valid even though the contest is instituted with probable cause. In the states where this rule is enforced, it makes no difference whether the beneficiary had a probable cause for contesting the WILL, and as long as the WILL is admitted to probate, the intention of the testator is the controlling factor. There are other states, however, where the prevailing rule is that a WILL can be contested for probable cause, despite any condition contained in its provision. In still other states there is some confusion as to what constitutes a reasonable ground for contesting the WILL.
In a few states, which are in the minority, the English "in terrorem" rule has been adopted and if the condition attached to a gift is such that it was an obvious and blatant hardship and if there is no gift-over or provision for the disposition of the legacy in the event that it is to be forfeited, the courts have taken the position that the testator's only purpose was to frighten the legatee into complying with the provisions of the WILL. The basis of this reasoning is the assumption that the testator, while including frightening words of "terror," did not provide for a substitute or alternative donee and therefore did not fully intend the gift to be forfeited.
