No-Contest Clauses in Massachusetts Wills

Every so often, someone creating a Will (known as a “testator”) may wish to include a clause that if a beneficiary (known as a “devisee”) contests that Will, the devisee’s inheritance shall be forfeited. Such clauses, known as no-contest, non-contest, and in terrorem (“in fear”) clauses, have been used by testators for centuries to quell frivolous Will contests. While state courts have historically been split as to the enforceability of such clauses, the Massachusetts Uniform Probate Code (“MUPC”) and long-standing Massachusetts case law hold that no-contest clauses are indeed enforceable in the Commonwealth. See, MUPC § 2-517 (“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”).

There are a number of reasons to include a no-contest clause in a Will. Discouraging a frivolous contest adds security that the testator’s final wishes will be respected. It also protects the testator’s privacy by preventing details of the testator’s life, and possibly those of her heirs and loved ones, from becoming a matter of public record in the Courts. This is particularly true where a contest is based on a claim of undue-influence or lack of testamentary capacity, the resolution of which may require invasive discovery into the testator’s mental health and personal life. Lastly, Will contests tend to significantly diminish an estate’s assets and a no-contest clause may ensure that the devisees, and not their lawyers, are the ultimate beneficiaries of the estate.

Critics of no-contest clauses point out that heirs who bring contests in good faith and with probable cause should not be penalized even if they lose because the courts should have access to all material information when determining the validity of a Will. No-contest clauses may act as barriers to the courts and may have a chilling effect on heirs with important information.

For a no-contest clause to be an effective deterrent, the would-be contestant must feel that he has more to lose than to gain by challenging the Will. For instance, an heir who takes $10,000.00 under a Will but who would take $100,000.00 if the Will were successfully set aside may not be deterred by a no-contest clause. Thus, if a testator is concerned about a contest by a particular heir, she may wish to “raise the stakes” by leaving that heir a substantial gift.

To be sure, a no-contest clause does not render a Will infallible. If an heir has a truly legitimate basis for contesting a Will, like proof that the Will offered into probate is a forgery, that heir should come forward and challenge the Will. A no-contest clause merely attempts to ensure that only heirs with truly meritorious claims come forward.

Devisees of Wills containing no-contest clauses must be very careful when taking actions regarding the estate in the Probate Court. Depending on the language of the Will and the circumstances of the estate, a particular action may inadvertently trigger a forfeiture. Remember, MUPC § 2-517 applies not just to will contests but also to “other proceedings relating to the estate.” Requests that the Probate Court take an action in non-compliance with the terms of the Will may be considered an action against the estate for purposes of a no-contest clause.

For example, in a recent case, a beneficiary of a trust containing a no-contest clause sought to remove the named trustee on the basis that the trustee refused to account to the beneficiary. Under the terms of the trust, the trustee was not obligated to render accounts to that beneficiary. The Massachusetts Appeals Court court found that, while the beneficiary had not necessarily contested the validity of the trust, he had instituted a proceeding to prevent the trust from being carried out in accordance with its express terms, which was a “real opposition” to the trust. This opposition, the court explained, may well trigger a forfeiture of the beneficiary’s interest under the no-contest clause. Hanselman v. Frank, Unpub. Lexis 715, Mass. App. Ct. (2010).

If you are a Personal Representative of an Estate facing a contest, or an heir considering instituting a contest, we invite you to write to us or call our office today for a detailed discussion of your circumstances.