The Executor - "in terrorem" - About Fear

New Jersey and Will Contests

My parents' Wills contained a provision called an "interrorem clause". Basically that clause is intended to create fear in any beneficiary who decides to contest the will by punishing such contest with some form of disinheritance. In the case of my parents Wills it states generally that if any beneficiary contests any portion of the Will that person will be treated is if he or she predeceased the testator. By way of explanation, in the case of my parents' Wills, were I to be treated as having died before my parents, my issue or my children would take equal portions of my share. If, on the other hand, my sister were to be deemed to have predeceased the Testators, than because she does not have any issue her portion would, in theory, get divided up amongst the remaining heirs. 

In New Jersey, while "interrorem clauses" can still be found in Wills from that state, they are rarely held valid in court. Moreover, specifically in the case of my parents' Wills, the interesting question was whether or not contesting the appointment of the Executor even represented a contest of the dispositive provisions of the Wills. My attorney and I concluded that not only are in terrorem clauses generally not held valid in New Jersey but also, the provision of my parents' Wills did not apply to the question of the appointment of the Executor.

On the day my father died, a Friday, my sister, the caregiver and I left the hospital, to make all of the funeral arrangements. The caregiver, who had dutifully cared for my mother for nearly 9 years and my father following her death, was as much a part of the arrangements as anyone. She had been a close and active member of the family for so long and knew more about what my father wanted than we did. As soon as the arrangements were made, I called some relatives with the information. While standing outside of the funeral home, only hours after my father's death, I called my cousin to let him know that Dad had died and to provide him with the arrangements. It's what my father would have wanted and what he expected. My cousin proceeded to yell at me and then to hang up on me. It was, at that time, abundantly clear that if he became the Executor he would make my life miserable.

At the time of my father's death, I was not completely certain that Dad had not actually signed a new Will or a codicil. Perhaps I was just resting on a final hope that, when my cousin did not contact my father to tell him my cousin's mother, my mother's sister had died, and when my cousin did not attend my mother's funeral, my father would have raised the priority level on signing the codicil. Apparently he had not.

At the time of his death he "detested" my cousin, a word he used often. He felt let down. He felt he no longer knew him. My father questioned the humanity of a person who misses a funeral on reasons of "principal" and did not even know if that was the reason why my cousin had chosen to miss my mother's funeral. My father had lost a lot of sleep over his disappointment and feelings of hurt. I had my suspicions, however, that Dad had not made any changes to his Will. Upon a discussion with the drafting attorney, the person who both held and who drafted the original Wills for both my father and mother, it was confirmed that my father had not finalized the process. He had a codicil drafted but never signed.

At the time, my sister and I were still on speaking terms. Knowing that after the 2010 e-mail incidents the Executor would most likely be extremely hostile to me we both decided that we would unite, hire an attorney and seek to have ourselves jointly appointed or in the absence of that, have a neutral party appointed.

After a few weeks strategizing and some legal analysis, our attorney contacted my cousin to advise of his naming in the Wills and to request him to step down. During that conversation, the cousin suggested that he would step down but only if my sister told him that's what she wanted. It was at that very moment that the conversation was conveyed to me, that I knew I was in for a very expensive, very time consuming legal battle. I knew that my cousin would either terrorize my sister or promise her something in exchange for her releasing her alliance with me.

It was when the question of in terrorem (which had been discussed with our attorney very early on) became her central focus that I realized he was leaning toward terrorizing her. He was telling her she would lose everything if she contested his appointment. He was convincing her that I had nothing to lose because of my children and she had everything to lose. Had she been speaking to a reasonably knowledgeable attorney, he could have set her at ease. Had she not been distracted by her desperation and her belief that this represents her last hope of a life (of never needing to work) she might have seen that she was being played. Had she remembered the years I had taken care of her, that she had lived with me, that I had paid for everything, perhaps she would have realized that the matter at hand was really small potatoes in comparison. To this day, I don't know whether her fear guided her in those early days or whether greed was her albatross. The battle continues and it is a battle that consists of paying attorneys potentially more than the estate is worth after taxes are paid and after the Executor takes his fees from both my mother's and my father's wills, a financial windfall his own legal business would never have provided him.  I surmise that he will be obtaining greater fees from my parents' Estates than he has in all of his years as an attorney. I suppose creating fear and being a parasite has its advantages.

Had my father signed the papers, all of this would have been avoided. Had he spent some money to take care of his affairs, so much would be saved now. So much is getting paid to lawyers and to the Executor. At this point, though.... well, that's for a different day.