Disinheritance of Potential Beneficiary; Protection against Will Contest Will Clauses (2 Pages)

CLAUSE 1: Disinheritance of Potential Beneficiary
CLAUSE 2: Clause to Discourage Will Contest – “In Terroram” Clause

A situation may arise where a testator desires to specifically exclude one or more persons from inheriting property under the testator’s Will. Since many wills refer to broad terms such as “children”, “issue”, “descendants”, “family”, etc., it is possible that the undesirable beneficiary will fall into one of these general categories. Simply omitting a person without discussion is often not an effective way to deny that person an inheritance. Accordingly, a specific reference to that person and a specific exclusion of that person as an heir becomes a necessary provision in the testator’s Will. Such a provision is found in (Clause 1).

Persons acting to eliminate a person who would otherwise be a “logical” heir (such as a child, grandchild, sibling, etc.) may also be concerned that the excluded heir may bring a will contest to challenge the will. In some cases, it is appropriate to include a clause in the will sometimes referred to as an “in terroram clause”, designed to negate any chance that a person challenging a will could ever inherit under it. Such a provision is found in (Clause 2). Some states allow these clauses to be enforced, others do not. If the claim against the will is that the testator lacked the testamentary capacity to make the will, the legal action will attempt to set aside the entire will – including this clause. Accordingly, proof of the testator’s capacity is an important element to establish along with the existence of this clause.

Author:
Steven G. Siegel is president of The Siegel Group, a Morristown, New Jersey - based national consulting firm specializing in tax consulting, estate planning and advising family business owners and entrepreneurs. Mr. Siegel holds a BS from Georgetown University, a JD from Harvard Law School and an LLM in Taxation from New York University.

He is the author of several books, including: Planning for An Aging Population; Business Entities: Start to Finish; Taxation of Divorce and Separation; Income Taxation of Estates and Trusts, Preparing the Audit-Proof Federal Estate Tax Return, Putting It Together: Planning Estates for $5 million and Less, Family Business Succession Planning, Business Acquisitions: Representing Buyers and Sellers in the Sale of a Business; Dynasty Trusts; Planning with Intentionally-Defective Grantor Trusts; The Federal Gift Tax: A Comprehensive Analysis; Charitable Remainder Trusts, Grantor Trust Planning: QPRTs, GRATs and SCINs, The Estate Planning Course, The Retirement Planning Course, Retirement Distributions: Estate and Tax Planning Strategies; The Estate Administration Course, Tax Strategies for Closely-Held Businesses, and Tort Litigation Settlements: Tax and Financial Issues.

Mr. Siegel has lectured extensively throughout the United States on tax, business and estate planning topics on behalf of numerous organizations, including National Law Foundation, AICPA, CCH, National Tax Institute, National Society of Accountants, and many others.  He has served as an adjunct professor of law at Seton Hall and Rutgers University law schools.

The Siegel Group provides consulting services to accountants, attorneys, financial planners and life insurance professionals to assist them with the tax, estate and business planning and compliance issues confronting their clients. Based in Morristown, New Jersey, the Group has provided services throughout the United States. The Siegel Group does not sell any products. It is an entirely fee-based organization. Contact the Siegel Group through its president, Steven G. Siegel, e-mail: [email protected].