The Evolution of In Terrorem Clauses in New York and Their Impact on Estate and Trust Litigation

In terrorem clauses have played a prominent role in the field of trusts and estates over the years, as evidenced by the numerous articles and decisions that have addressed their impact on planning and litigation. Indeed, an in-terrorem clause has been considered a useful device in planning to avoid both a will and/or a trust contest; and, in the context of litigation has often been the subject of judicial opinion as to whether a beneficiary's conduct has triggered the clause.

Ms. Cooper's presentation will consider the legislative development of the in-terrorem clause under New York law, and examine the kinds of conduct that have been judicially determined to have triggered its terms. Particular attention will be given to the interplay between in-terrorem clauses and inter vivos trusts, as well as public policy issues against enforcement.

Learning Objectives:

1. Define what an in-terrorem clause is and the kinds of conduct impacted by its terms

2. Review the safe harbor exceptions to the application of an in-terrorem clause

3. Discuss the use of in-terrorem clauses in inter vivos trusts

4. Analyze public policy issues affecting the scope of in-terrorem clauses