What to Know About No Contest Clauses in Massachusetts & How They Fit Into Your Estate Plan

Many of our clients’ express concerns over what will happen after they pass away, even if they have executed an estate plan that includes a Will and/or Trust. These concerns often arise when certain children or family members are intentionally excluded, or when named beneficiaries have strained relationships.

For estate planning clients in Massachusetts, a powerful tool to address these concerns is through the incorporation of a no contest clause, also known as an in terrorem clause. These clauses have continuously been upheld as valid and legally enforceable in Massachusetts. It is important to understand, however, what these clauses can and cannot do, as well as how Massachusetts courts have interpreted them over the past few decades.

What Is a No Contest Clause?

A no contest clause is a provision included in a Will or Trust that is intended to deter all beneficiaries from disputing or contesting the document in any way. In the legal realm, no contest clauses are often referred to as “In Terrorem” clauses. In Terrorem is a Latin term that translates to “in terror” or “in fear.” They are used to strike fear into a beneficiary to discourage them from objecting to the Will or Trust.

How does it cause such deterrence? By causing the beneficiary to put their full inheritance on the line. These clauses state that if any beneficiary disputes the instrument, then they risk forfeiting the full inheritance that they would otherwise be entitled to receive. A standard in terrorem clause used in a Will could read as follows:

“If any beneficiary hereunder shall in any way, directly or indirectly, contest or object to the probate of this Will, or dispute any provision hereof, or exercise or attempt to exercise any right to take a share of my estate against the provisions of this Will, or institute, prosecute, or be in any way, directly or indirectly interested or instrumental in the institution, or prosecution of any action, proceeding, contest or objection, except as a party defendant, or give any notice for the purpose of setting aside or invalidating this Will, or any provisions hereof, then all provisions for such beneficiary or for his or her descendants contained herein shall be revoked and shall pass under my Will as if such beneficiary and his or her descendants had predeceased me.”

While these clauses read rather harshly, they are intended to be. The Testator (the creator of the Will) has the freedom of disposition to include such a clause if they have any concerns that their beneficiaries may object to the terms of the Will.

If a beneficiary were to contest a Will containing such a clause, they would not only risk forfeiting their inheritance in its entirety, but it is likely that they would also be responsible for paying any legal fees, court costs, and litigation expenses out of their own pocket. As you'll notice in the example above, not only is a beneficiary putting their own inheritance on the line, but they also risk the forfeiture of any inheritance for their descendants as well. As a result, the inclusion of this clause can have a profound impact in persuading your beneficiaries to think twice before contesting your Will.

Common Grounds for Contesting a Will

In the event that a beneficiary, legal heir, or interested person with legal standing, were to contest your Will, they would begin by formally objecting. This is done by filing a notice of appearance and an affidavit of objections with the applicable Probate & Family Court where the petition was filed. This process has strict procedural requirements, and it must be done in a timely manner (before the return date specified in the return citation) or else you lose the right to pursue the claim.

The affidavit of objections is where one must detail specific facts, including plausible evidence supporting the claim. Some of the most common objections and grounds for contesting a Will include:

• Testamentary Capacity: The Testator must be over the age of 18 and be of “sound mind.” This means they understand the nature and extent of their property and assets, they understand the consequences of their disposition, and they understand who they have selected to receive their assets as well as who would otherwise be entitled to receive their assets under Massachusetts Intestacy law. It is important to note that simply arguing the Testator suffered from a diagnosis of dementia or Alzheimer’s is not enough. Even those suffering from these diseases can still have moments of clarity, and the law only requires that the Testator have capacity at the exact moment the instrument is signed. Additionally, testamentary capacity is a much lower threshold than the standard contractual capacity needed to enter into every-day business or personal contracts;
• Undue Influence: A person, typically one in a position of trust or authority, such as a caretaker, new significant other, or adult child, overtakes and manipulates the testator’s free will;
• Duress: While uncommon in the dispute of a Will or Trust, this occurs when someone makes direct threats (either physical or economical) to coerce the testator into signing a Will that they otherwise would not have executed;
• Improper Execution: The document did not meet the statutory requirements such as being in writing, signed by the testator, and witnessed by two credible, disinterested witnesses in the conscious presence of the testator (Outlined in M.G.L. c. 190B, § 2-502);
• Fraud: Can be fraud in the factum (tricked about the nature of the document you are signing) or fraud in the inducement (you understood what you were signing but you were tricked into the terms of the document or they were falsely misrepresented to you).

Massachusetts Law Specifically Authorizes the Use of No Contest Clauses

Massachusetts has a statute that specifically validates the enforceability of a no contest clause in a Last Will and Testament. Under Massachusetts General Laws, Chapter 190B, § 2-517, a clause that penalizes beneficiaries for contesting a Will is legally recognized and enforceable in the Commonwealth. The statute reads in full:

"A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is enforceable."

In the interpretation of this statute, Massachusetts Courts have frequently cited that no contest clauses should be enforceable as a matter of policy, as they favor the freedom of disposition. This statute, along with the Courts frequent interpretation, reflects the longstanding principle in Massachusetts that Testators should be free to structure their Will as they see fit, and they have a right to rescind any transfer specified in their Will in an effort to deter frivolous or disruptive litigation.

Courts Have Typically Expanded Enforceability to Trusts

While the statute (M.G.L. c. 190B, § 2-517) expressly references Wills, Massachusetts Courts will typically extend the enforceability of no contest clauses to Revocable Trusts as well.

In a recent 2017 case, Ginsberg v. Ginsberg, the Massachusetts Superior Court, Suffolk County, upheld the enforcement of a no contest clause contained in a revocable (inter vivos) trust. The court reasoned that the same public policy principles underlying the statute, namely, protecting the settlor’s intent, apply equally to trusts that are used as Will substitutes. See also Hanselman v. Joseph Frank (Massachusetts Appeals Court, 2010) in which the Appeals court panel also held that a forfeiture provision in a trust was enforceable.

This is an advantageous holding from an estate planning standpoint. Many clients prefer the use of Revocable Trust planning if their goals include probate avoidance, keeping their affairs, private, and streamlining the transfer of their assets. For a full overview of the benefits of a Revocable Trust, read our full legal blog here. These rulings help clarify that beneficiaries cannot avoid a no contest clause simply because the majority of the dispositive provisions were structured through a Revocable Trust rather than a Will.

A Recent Application That Clarifies How No Contest Clauses Are Interpreted

A recent Massachusetts Appeals Court decision, In the Matter of the Estate of William F. McLoughlin (2024), provides even greater clarity as to the extent in which a Court will interpret and enforce a no contest clause.

In McLoughlin, the decedent executed a Will that included a no contest clause. One of his six children, William Jr., was disinherited from the Will entirely. William Jr. later challenged the validityof the Will, alleging that his father lacked testamentary capacity, and sought to introduce evidence of the decedent’s declining mental state leading up to and during the execution of his Will. Another child of the decedent, Sean, who was a named as a beneficiary under the Will, later provided an affidavit in support of William Jr.’s allegations, claiming that the decedent suffered from Alzheimer’s and dementia at the time of the Will’s execution.

The key question before the Appeals Court was whether Sean’s actions, submitting an affidavit in support of his brother’s challenge, triggered the Will’s no contest clause and caused him to forfeit his own inheritance. The clause was not applicable to William Jr., as he was not named in the Will. It was, however, applicable to Sean, because he was a beneficiary listed in the Will.

The Appeals court reversed the lower court’s decision, and remanded the case for entry of a new judgment in favor of Sean. The Appeals Court ruled that Sean’s actions did not violate the no contest clause, and as a result he was not subject to forfeiting his inheritance solely by filing the 0affidavit in support of his brother, William Jr. The Court reasoned that Sean himself did not directly dispute or contest the Will. As Sean argued, he only provided factual testimony as a witness, and did not join in any legal proceedings on his own accord.

This is an important ruling as it helps narrow the interpretation as to how no contest clauses will be enforced. The Appeals court stated in its opinion that “because equity does not favor forfeitures, in terrorem clauses must be construed narrowly.” The Court also cited public policy concerns in its opinion. As the Court reasoned, witnesses should not be punished for providing factual testimony, under oath, and thus aiding in the legal process. This should hold true even for witnesses such as Sean, who should be able to testify truthfully without fear of losing their inheritance in its entirety.

This case has important implications for estate planning attorneys, as special attention must be given to these clauses to ensure it is clear and unambiguous as to what will, and what will not, trigger a no contest clause. More importantly, these clauses must match the intent of the Testator to ensure only specified conduct, as determined by the Testator, will fall within the scope of the provision.

Why Courts Uphold No Contest Clauses

Massachusetts Courts consistently uphold no contest clauses because they support a fundamental public policy: freedom of disposition. This is the idea that a Testator of a Will or the Settlor of a Trust should have the freedom to determine how their property is distributed after death.

From a policy standpoint, courts recognize that:

• Estate litigation can drain estate assets and prolong probate administration;
• Clear disincentives help reduce unnecessary legal challenges;
• Use of these clauses reduces the potential for frivolous litigation, brought only out of anger or spite and without any viable evidence or credible testimony;
• Testators should be able to protect their testamentary intent.

For more almost a century, Massachusetts courts have enforced in terrorem clauses when appropriate. Even though statute M.G.L. c. 190B, § 2-517 was only codified in 2011, the enforceability of no contest clauses in Massachusetts dates back to early decisions like Rudd v. Searles, which came from the Massachusetts Supreme Court in 1928.

The Practical Impact & Costs of Contesting a Will or Trust

A no contest clause can be a meaningful deterrent, particularly when beneficiaries stand to receive a significant inheritance. If you plan to dispute a Will or a Trust, you should be certain that you have clear, credible evidence supporting your claim.

Anyone contemplating a challenge must consider:

• Whether they have a credible, good-faith basis for the challenge;
• Both the emotional and financial cost of litigation;
• On what grounds they intend to challenge the Will or Trust (and remember, it is not enough to simply state the decedent suffered from Alzheimer’s, dementia, or any similar condition; actual evidence or testimony is required);
• The risk of forfeiting their full inheritance if their challenge fails.

Will and Trust disputes are expensive and time-consuming, often requiring significant attorneys’ fees, court fees, expert testimony, the production of witnesses, and extended court involvement. A strong no contest clause can help eliminate any legal battles over your testamentary decisions.

Should You Include a No Contest Clause in Your Estate Plan?

No contest (in terrorem) clauses are a viable and legally enforceable tactic for clients who want to discourage beneficiaries from contesting their estate plans. While enforceable, these clauses are construed narrowly, and should be thoughtfully discussed with an experienced estate planning attorney.

The attorneys at Lane, Lane & Kelly have extensive experience in crafting no contest clauses that match your unique circumstances, and aid in carrying out your specific intent. Contact us today to get started with your estate plan, or to discuss any updates you’d like to make to an already existing plan. Take control of your plan to ensure you protect your wishes and reduce the likelihood of any costly disputes after your death.

This blog is made available for educational purposes onlyas well as to give you general information and a general understanding of thelaw, not to provide specific legal advice. By reading this blog you understandthat there is no attorney client relationship between you and Lane, Lane &Kelly, LLP.