Posts Tagged ‘Matter of Shumway’

Should There Be An In Terrorem Clause in Your Will or Trust?

AUGUST 3, 2009  VOLUME 16, NUMBER 49

You would like to make sure that your children get along after you are no longer around to tell them to behave, wouldn’t you? Although you may not anticipate any disagreements, you know that money can change relationships, and you have seen how the death of a parent can interfere with sibling relationships. Perhaps you have considered including a “no-contest” provision in your will or trust, and you wonder: Would that help maintain family harmony?

The name lawyers usually apply to such no-contest provisions is revealing. We call them “in terrorem” clauses — meaning that they are intended to terrorize anyone who would otherwise receive a share of the estate from filing any contests. But do they actually work? They can, but they seldom do. Why not?

The primary reason is simple. Say your plan is to leave everything to your three children, in equal shares. Since that is exactly what would happen if you had no will (or trust — in terrorem provisions can be used in trusts, too), there is no incentive for any of them to contest your estate plan anyway. No one else would receive anything even if your documents were successfully challenged, so there is simply no need to include a no-contest clause.

Maybe your plan is different. Say one of your children has already received a significant share of your property, or you disapprove of his or her life choices. You want to disinherit that child, and you want to make sure he or she does not contest your plan. In this situation the in terrorem provision is not going to make much difference — since the disinherited child receives nothing anyway, providing that they will be disinherited if they contest the documents is not much of a deterrent.

All right. Let’s say you really want to make the point. You agree to leave a small share of your estate — perhaps a few thousand dollars — to the disfavored child, and then include an in terrorem provision. Will this work?

It might. Obviously, the beneficiary who is slated to receive something but who will lose it for contesting will have to think twice about filing any objections. You should know, however, that Arizona law (like the law of a number of other states) limits the effectiveness of the provision. If your disgruntled heir has “probable cause” to file an objection — even if he or she is ultimately unsuccessful — the in terrorem provision will not be enforced. (For one illustration of how this might work, consider the 2000 Arizona Supreme Court case of Matter of Shumway, which we described in an “Editor’s Note” to our 1999 article on the Court of Appeals decision in the same case.)

We do not include many no-contest clauses in wills and trusts we draft for our clients. They probably do no harm, except that they would leave our clients with a false sense that they had protected against family conflicts. If conflict avoidance is important to you, we need to come up with a better plan — like including a requirement that any contest be submitted to arbitration or mediation. We can discuss specific ideas for your particular situation.

Will Prepared By Bookkeeper Valid–Contestants Disinherited

SEPTEMBER 20, 1999 VOLUME 7, NUMBER 12

Six days before he died, Arizonan Ralph Shumway signed a new will. Rather than consult a lawyer to prepare the will, Mr. Shumway had relied on his bookkeeper, Adelida Vega Rodriguez, to prepare the document for him. Because the will she prepared left one fourth of Mr. Shumway’s estate to Ms. Rodriguez, two of his daughters challenged its validity.

Ms. Rodriguez had used computer software to prepare Mr. Shumway’s will for him. As she testified at trial, the program did not allow her to edit his will or make any changes; she answered questions on the computer and the final product was automatically produced. Furthermore, she said, she simply read the questions to Mr. Shumway (who was blind) and he provided the answers.

The will Mr. Shumway signed was actually Ms. Rodriguez’ second effort on his behalf. The first version of his will left one-quarter of his estate to be divided among his daughters, and one-quarter each to Ms. Rodriguez and two of Mr. Shumway’s brothers. When he reviewed that draft, Mr. Shumway decided one of his brothers should receive only a token amount instead—this change was later taken as evidence that Mr. Shumway was making his own decisions and not unduly influenced by Ms. Rodriguez. His final will left a few small bequests to individuals, and divided the remainder half to his daughters and one-quarter each to his brother Newell and to Ms. Rodriguez.

Mr. Shumway’s will also included an in terrorem clause—a provision that called for the disinheritance of any beneficiary who challenged the validity of the will. When two of Mr. Shumway’s daughters objected to the will’s provisions in favor of Ms. Rodriguez, she responded by arguing that their legal challenge caused them to lose their interest in the estate.

Mr. Shumway’s daughters made two attacks on their father’s last will. They first argued that Ms. Rodriguez had unduly influenced their father, and that the provision leaving her one quarter of the estate was invalid. Then they argued that by preparing the will she was practicing law without a license, and that she should be prevented from seeking admission of the will to probate. They noted that under Arizona law a lawyer who prepared a will for a non-relative leaving one-quarter of the estate to himself or herself would be subject to disciplinary proceedings, and the bequest to the lawyer would be set aside.

Arizona law holds that a will (or deed, or gift) is presumptively invalid if it was procured through the efforts of one who shares a “confidential relationship” with the person making the transfer. Both parties agreed that Ms. Rodriguez, because she handled Mr. Shumway’s finances and worked closely with him for an extended period of time, held such a confidential relationship. They disagreed about whether she had overcome the presumption that the will was invalid.

The Arizona Court of Appeals agreed with Ms. Rodriguez that she had shown, clearly and convincingly, that the will represented Mr. Shumway’s own wishes. They pointed out that he had made changes to the first draft she prepared, and that Mr. Shumway had a reputation as a strong-willed, opinionated man even during his final illness, and that he had not been close to his children.

The claim that Ms. Rodriguez was practicing law when she prepared the will was also easily disposed of. The court noted that she had not given Mr. Shumway any legal advice, and had really only answered questions posed by the software program she used to prepare his will. To hold that the will was invalid simply because a non-lawyer was involved, noted the court, would invalidate thousands of wills unnecessarily.

The last question was whether the provision of Mr. Shumway’s will which penalized his daughters for filing the will contest should be enforced. The court held that an in terrorem clause can be valid in Arizona, at least where the contestant did not have probable cause to file litigation. In this case, ruled the judges, Mr. Shumway’s daughters should have known that the contest would fail, and should not have filed it. Mr. Shumway’s daughters inherited nothing from his estate. Estate of Shumway, September 7, 1999.

[Editor’s note: Almost exactly a year after this article was written, the Arizona Supreme Court reversed the Court of Appeals decision with regard to the effect of the in terrorem provision. In Matter of Shumway, September 15, 2000, the state’s high court considered Arizona law on the subject and held that there was at least probable cause for the filing of a contest of Mr. Shumway’s will. Since probable cause existed, the daughters’ shares under his new will should not have been forfeited. The Supreme Court vacated the Court of Appeals decision, or at least that portion of it which applied the in terrorem provision.]

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