In this season of giving, a number of our readers are asking about “taking away” from or penalizing children who would otherwise inherit from them if the children tried to contest their parents’ wills.

Last week, a 79-year-old man, who had been married three times, wanted to prevent his older children by prior marriages from contesting his will and trying to disrupt his estate plan to support his current wife and educate his 15-year-old child. He said his older children (ages 51, 43, 32, and 29) are jealous because they think he is going to exclude them or not treat them “fairly” when he dies, even though he educated them all. He wants to make sure his wife receives the bulk of his estate in trust or otherwise, and wants to consider penalty clauses in his will to prevent a contest.

In last week’s column, we gave him seven different areas to explore, but due to the number of recent inquiries we have received about penalty clauses, we felt it necessary to provide more information about what are called “in terrorem” and “forfeiture” clauses.

Generally speaking, clauses inserted in a will that are designed to penalize any beneficiary who contests a will or brings legal proceedings regarding the estate are valid and enforceable. These clauses, generally referred to as "no-contest" or "in terrorem" clauses, are intended to protect an estate from expensive litigation, to reduce the squabbling over whether the person who signed the will was competent or subjected to undue influence, and to prevent details of the will signer’s private life from being made public (because will contests bring to light private matters that otherwise would not be made public).

Since “no contest” clauses are empty threats without financial penalties, “no-contest” clauses can provide that in the event there is a dispute, the interest of the challenger will be: 1) charged with the cost of the litigation, 2) partially forfeited, or 3) fully forfeited. In the latter events, the challenger’s interest would lapse (in part or in whole) and be given to one or more different beneficiaries.

Based on our research, while the majority of states recognize that the general rule that no-contest clauses are valid and enforceable, there are exceptions if the person making the challenge has probable cause or good faith to bring a legal action. In this event, the no-contest clause will be unenforceable.

Therefore, it appears that, in addition to simply preparing a will and inserting a “no contest” or forfeiture clause, it is wise to go farther and cover all bases. How?

We suggest that at or near the time you sign your will, you be examined by your primary care physician, and also possibly be evaluated by a geriatric care manager. Both of them should write an affidavit swearing that you know and understand exactly what you are doing, and that you haven’t been subjected to undue influence. These affidavits should be attached to your will, and the will should be kept in a safe place. In addition, you may want to consider asking your attorney to write all of those whom you believe may want to contest your will, to let them know that you have made a new will, what it includes, and what will happen if it is contested. You may even want to provide a copy of your will to those whom you believe may contest it.

Since each state law may treat these issues differently, it’s not a good idea to prepare these documents yourself. Always seek the assistance of a competent lawyer to help you.