Not all actions taken by beneficiaries will trigger an in terrorem clause.
Many Wills and Trusts in New York include an in terrorem clause (also known as a no-contest clause)—a provision meant to deter challenges to the estate plan by threatening to disinherit any beneficiary who contests the document. Understanding what’s protected (and what’s not) is essential for anyone navigating a trust or estate dispute.
At RK Law PC, we help beneficiaries and fiduciaries alike understand their rights and obligations under New York’s estate laws. Here’s what you need to know.
What Actions Trigger an In Terrorem Clause?
An in terrorem clause typically takes effect when a beneficiary initiates legal action that calls into question the validity or terms of the will or trust. Examples include:
- Filing objections to the validity of the Will or Trust, such as:
- Lack of testamentary capacity
- Undue influence
- Fraud or duress
- Improper execution
- Lack of testamentary capacity
- Litigating to invalidate or alter the document
- Asserting a conflicting or superseding instrument
In these cases, the beneficiary risks losing any inheritance they would have received under the challenged instrument.
What Actions Do Not Trigger an In Terrorem Clause?
New York law specifically protects certain actions taken in good faith to seek information, court guidance, or fiduciary accountability from an Executor under a Will or a Trustee under a Trust.
NOTE – While there are currently no statutes governing in terrorem clauses in Trusts, New York statutes and case law related to Wills are considered instructive and are routinely applied by Courts to Trusts.
Protected actions include:
- Examining attesting witnesses
- Deposing the attorney who drafted the will or trust
- Conducting pre-objection discovery under SCPA § 1404
- Requesting financial or administrative records
Additionally, courts have made clear that beneficiaries can take steps to monitor fiduciaries (Executors AND Trustees) and seek judicial assistance without triggering a no-contest clause. These include:
✅ Filing a Petition to Compel an Accounting
In Matter of Merenstein, 2018 NY Slip Op 32498(U) (Sur Ct, New York County 2018), the Surrogate’s Court held that a petition to compel an accounting did not trigger the in terrorem clause. The request was viewed as a proper exercise of a beneficiary’s right to transparency—not a challenge to the validity of the document. This position was later reaffirmed in Matter of Merenstein, 146 N.Y.S.3d 447 (Sur Ct, Nassau County 2021).
✅ Filing a Petition for Advice and Direction
Seeking guidance from the court on how to interpret or administer the terms of a trust or will is not considered a “contest.” Courts recognize that beneficiaries and fiduciaries alike may need clarification on ambiguous provisions or duties.
✅ Petitioning to Remove a Fiduciary for Misconduct
In Matter of Aoki, 221 A.D.3d 479 (1st Dept. 2023), the Appellate Division found that a petition to remove fiduciaries for self-dealing and breach of duty did not violate the in terrorem clause. The court distinguished such actions from a direct attack on the instrument itself, noting they were aimed at enforcing fiduciary responsibilities.
Key Takeaway
If you’re a beneficiary concerned about exercising your rights under a Trust or Will, don’t assume any petition will put your inheritance at risk. New York courts draw a clear line between challenging the document itself and seeking proper fiduciary conduct when determining whether an action will trigger an in terrorem clause.
At RK Law PC, we advise clients on how to protect their inheritance while staying within the boundaries of the law. If you’re unsure about how an in terrorem clause might apply to your situation, we’re here to help.
📞 Contact us today to schedule a consultation, protect your rights, and determine what action will trigger an in terrorem clause.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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