June 25, 2013
Authored by: Luke Lantta
We know that, because in terrorem clauses result in forfeitures, they are to be narrowly construed. Just how narrow the construction can mean the difference between a significant inheritance or no inheritance at all. When a testator indicates that a taker under the will forfeits the “entire interest” that the taker would otherwise have under the will, is there room to more narrowly construe the phrase “entire interest” to mean anything other than the taker’s entire interest? In other words, can you distinguish between a right to specific bequests and a right to take as part of a residual class? According to the Georgia Supreme Court, “no.”
In Norton v. Norton, Lisa Norton and Beth Simmons were bequeathed real property under the will of their father, Charles Powell Norton. They filed a caveat to the will, claiming undue influence, and the caveat was rejected. The unsuccessful caveat triggered the following in terrorem clause:
Should any taker under this will, including any taker under powers of appointment exercised herein become an adverse party in a proceeding for its probate, such takers shall forfeit his or her entire interest hereunder and such interest shall pass as part of the residue of my estate, provided, however that if such taker is one of the takers of the residue, his or her interest shall be divided proportionately among the takers of the residue.
Lisa and Beth didn’t dispute that filing the caveat rendered them adverse parties in a proceeding for the will’s probate, but they contended that, although the in terrorem clause may eliminate their specific devises of real property, it did not affect their ability to inherit under the residuary clause.
The Georgia Supreme Court stated that the language in the will was clear that a challenge to the will’s probate by one named as a taker under the will results in forfeiture of the “entire interest” that taker would otherwise have under the will. The forfeiture necessarily includes any interest under the residuary clause. For a court to find otherwise would render the term “entire interest” meaningless. Indeed, the in terrorem clause in Charles Powell Norton’s will provided how a member of the residuary class’s share would be divided among those members of the residual class who did not contest probate.