In Terrorem Faq

Making The Beneficiaries Jump Through Hoops – In Terrorem – Q&a;

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Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.

Three questions arose:

1. Did the paragraph beginning ‘As a safeguard to my wishes’ create a valid condition?

2. If so, had there been a breach of the condition?

3. If the answer to question 2 was ‘Yes’, was the gift over to the Leonards effective?

A quick reading of the above will shows that the result of C’s decision to bring court proceedings would have been to disinherit not only C but the charities as well. Surprisingly, the court held that this did not in itself make the condition void for uncertainty.Further, although the existence of such a condition would obviously have a strong deterrent effect on a beneficiary wondering whether to bring an action that did not make the condition contrary to public policy.

However, it was clear that some words had been left out of the final sentence and it appeared impossible for the courts to say what they might have been. As a result, the condition was void for uncertainty.

As the condition failed for uncertainty it was not necessary to determine the other issues but the judge went on briefly to express his views. He stated that C’s action clearly breached the condition whether or not it was successful.

Even assuming the court had the power to grant relief from forfeiture in favour of the charities it would not have considered it appropriate to do so given the clear wording of the codicil. It was apparent that the testatrix had intended all the beneficiaries to be disinherited if one of them contested the will in any way.The fact that C’s claim had this result was no reason to deprive the gift over of its effect.

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