What New York Lawyers Should Know About In Terrorem Clauses in Wills and Trust Agreements
[Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.]
An in terrorem clause, or “no-contest” clause, is a provision in a will or trust that penalizes beneficiaries who challenge the document’s validity. If a beneficiary contests the will or trust and loses, they forfeit their inheritance. However, if the contest succeeds, the clause becomes void. The goal of such clauses is to discourage disputes that would undermine the grantor’s intent, though challenges are still common.
Under New York law, in terrorem clauses are enforceable but disfavored and must be strictly construed. Attorneys often face tough decisions when advising clients about whether to contest a will or trust that includes one. In probate matters, wills are not effective until admitted to probate, and New York statutes provide limited “safe harbor” provisions that allow beneficiaries to conduct certain discovery before deciding whether to object. Trusts, by contrast, take effect upon execution and are not governed by specific statutes addressing in terrorem clauses.
The Court of Appeals has addressed these clauses in two key cases. In Matter of Singer, the court ruled that limited discovery in a will contest did not violate an in terrorem clause, reaffirming that such clauses must be interpreted narrowly. More recently, in Carlson v. Colangelo, the court reviewed an in terrorem clause in a trust for the first time. The beneficiary, Kristine Carlson, sued to enforce her rights under a trust created by Donald Dempsey. Lower courts ruled that her lawsuit triggered the clause, but the Court of Appeals disagreed, holding that her action merely sought to enforce the trust’s terms rather than challenge them.
The Carlson decision confirms that in terrorem clauses in both wills and trusts are enforceable but limited in scope. Actions meant to ensure that a trustee carries out the grantor’s intent do not trigger forfeiture. Still, there is no statutory guidance for trust contests, leaving uncertainty for practitioners. Until new legislation establishes safe harbor protections for trusts, attorneys must carefully evaluate the risks before pursuing litigation that could activate an in terrorem clause.
For more information see Irma K. Nimetz and Frank W. Streng “What New York Lawyers Should Know About In Terrorem Clauses in Wills and Trust Agreements,” New York State Bar Assoication Journal, September 2025.