No Contest, Forfeiture, In Terrorem Clauses: Wills & Trusts
To combat disputes and litigation about wills and trusts, estate planning attorneys sometimes advise clients to include a no contest, forfeiture or “in terrorem” clause in a will, trust or estate document. These clauses generally provide that if an heir or other party files a suit relating to the document he or she is disinherited. The primary purpose of this type of clause is to discourage someone from pursuing litigation.
These types of clauses are valid in Missouri, but are strictly construed by courts. The Missouri Supreme Court has observed:
“In determining what constitutes a “contest” or other violation of a no-contest or forfeiture provision, it would seem the facts of the particular case are to be considered, taken into account and applied with a careful regard for the phrasing or language of the no-contest or forfeiture clause; and, having in mind that forfeitures are not favored by the law, a no-contest or forfeiture provision is to be enforced where it is clear that the trustor (or testator) intended that the conduct in question should forfeit a beneficiary’s interest.” Cox v. Fisher, 322 S.W.2d 910, 915 (Mo. 1959).
Subsequent precedent has reiterated that these provisions are generally unfavored by the law and will only be enforced where it is clear that the testator/settlor/executing party intended that the conduct in question should forfeit a beneficiary’s interest under the trust, will or estate document. Tobias v. Korman, 141 S.W.3d 468, 477 (Mo. Ct. App. 2004).
There are some circumstances in which a forfeiture clause in a trust will not be honored. Accordingly, it is important to retain legal counsel, whether you are pursuing a claim or defending a claim, who is knowledgeable about the applicability of a forfeiture provision in an estate litigation or probate litigation matter.