A loved one has just passed away and there is a reading of the will. The decedent has included a provision called a “no contest” or “in terrorem” clause. These types of clauses are used to discourage beneficiaries of a will from challenging the decedent’s wishes. If a challenge is made, the beneficiary could lose his/her interest or inheritance.
M.G.L. c. 190B, section 2-517 provides “A provision in a will purporting to penalize an interested person for contesting a will or instituting other proceedings relating to the estate is enforceable.” In essence, an in terrorem clause in a will (or trust) revokes the inheritance of anyone who challenges the validity of the will or trust.
Commonwealth of Massachusetts Courts: Further Narrowing the Exceptions for Invoking the Clause
Massachusetts has long recognized in terrorem clauses as valid and enforceable. However, because equity does not favor forfeitures, these clauses have been construed narrowly by the courts.
In September 2024, the Appeals Court of Massachusetts further narrowed the exceptions for invoking an in terrorem clause. In the Matter of the Estate of McLoughlin, the Decedent executed a will in 2020 which included an in terrorem clause which provided in pertinent part:
“If any beneficiary hereunder shall contest the probate or validity of this will or of any of the beneficiary designations in place in connection with any of my qualified plans, IRAs, life insurance policies, or any other asset of mine passing outside of this, my last will, or any provisions thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this will or any provisions I have made during my lifetime for the distribution of my assets, whether probate or non-probate in nature, or to prevent any provision thereof from being carried out in accordance with its terms, then all benefits provided for such beneficiary are revoked, and such revoked benefits shall pass to the residuary beneficiaries of this will (other than such beneficiary).”
The Decedent died shortly after executing the will. He did not have a surviving spouse, but he was survived by his six children. The Decedent devised his assets to all his children except for his namesake William Jr. The will was submitted for probate by one of the Decedent’s children who was then appointed personal representative of the Decedent’s estate. William Jr. filed a motion to allow him to file a late objection to the will and asserting among other things, that he was unaware that his father had a new will drafted that supposedly superseded the will that he executed in 2004, and that the will was invalid based upon the Decedent’s mental state at the time he executed the will. William Jr.’s brother, Thomas (the appointed personal representative), filed an affidavit in opposition to William’s motion to file a late objection. Sean, William’s Jr.’s brother filed an affidavit corroborating the allegations made by William, Jr. and disputing allegations made by Thomas. The court denied William Jr.’s motion. Thomas proceeded to file a complaint for instructions and asked for a determination as to whether the affidavit filed by Sean triggered the in terrorem clause in the will which would result in Sean forfeiting his inheritance. Sean responded to the complaint and filed a motion for summary judgment asserting that the in terrorem clause did not apply because he did not contest the will, did not initiate or join in any proceeding contesting the validity of the will and therefore he should keep his inheritance. Sean’s sisters filed a cross motion for summary judgment arguing that Sean’s actions triggered the in terrorem clause. The court denied Sean’s motion and allowed the sisters’ motion. In its decision, the court ruled that the benefits provided to Sean pursuant to the will should be revoked and those benefits would pass to the residual beneficiaries. Sean appealed.
The Appeals Court ruled that the in terrorem clause was not triggered by Sean’s actions. Instead, the Court concluded that Sean’s involvement was that of a witness and that the affidavit that he provided in support of William Jr.’s motion did not meet the requirement of contesting, instituting or joining in a proceeding to contest the validity of the will that was sufficient to trigger the in terrorem clause. The Court concluded that nothing in the record indicated that “Sean engaged in conduct beyond appearing as a witness; typically, more active participation in the contest is required to trigger the in terrorem clause.” The Appeals court reversed the Probate Court’s decision and remanded the case back to the Probate Court for entry of judgment in favor of Sean.
The Importance of Legal Counsel for Effective Estate Planning to Have Your Intentions Implemented
When you are meeting with your lawyer to draft your estate plan it is important to think about and make clear your wishes as to how your assets are to pass after your death. Clear guidance will discourage frivolous challenges that are made by the expected beneficiaries and save the estate both time and money.
In terrorem clauses are often litigated in the Massachusetts Probate and Family Court without much success. Estate planners should consider drafting in terrorem clauses as narrowly as possible and take into account the expected challenges that may arise including claims of lack of testamentary capacity, undue influence, and elder abuse. Beneficiaries should consider consulting with counsel before participating in an action which may unknowingly jeopardize their own inheritance.
You’ve Got to Give Them Something
In our practice, historically we’ve used in terrorem clauses selectively, in those cases where our client expects a challenge. This is often in cases where they wish to disinherit a child or other heir. For the in terrorem clause to work, however, the client must leave that child or heir something in the will or trust, otherwise they will have nothing to lose in challenging the validity of the document. And it must be enough for the loss of the inheritance to be a real disincentive to challenge the document. This can be a bitter pill to swallow for those who really don’t want to leave that individual anything.
Attorney Michael B. Cosentino is a Founding Partner at Wilchins Cosentino & Novins LLP. His practice includes Estate Planning and Fiduciary Litigation as part of the Private Client Services practice . Learn more about Michael Cosentino.
This article does not create, and should not be construed as creating, an attorney-client relationship.