Should You Include a No-Contest Clause in Your Massachusetts Will or Trust? What Families Should Know
A disappointed beneficiary can challenge capacity, allege undue influence, attack a late amendment, question a trust, or try to undo a distribution that was deliberately unequal. A no-contest clause, also called an in terrorem clause, is designed to make that decision expensive: bring a prohibited challenge and risk losing the inheritance the document otherwise gives you.
The clause can be especially important when:
- one child will receive substantially less than the others;
- a beneficiary has already threatened to fight the will;
- a parent is making a major late-life change;
- a second spouse and adult children have competing expectations; or
- a family business, home, or other valuable asset is likely to trigger a dispute.
Massachusetts gives these clauses real force. General Laws Chapter 190B, Section 2-517 expressly makes a penalty provision in a will enforceable when it applies to a person who contests the will or institutes other proceedings relating to the estate. Massachusetts also rejected the Uniform Probate Code’s general probable-cause exception, which means a contestant cannot simply assume that having a reasonable basis for the challenge eliminates the forfeiture risk.
A Massachusetts estate planning lawyer should not include the provision automatically. Massachusetts courts construe forfeiture clauses narrowly, so a provision can fail if it does not clearly reach the conduct that actually occurs. The real question is when you should include a no-contest clause, what conduct it should cover, and whether the threatened inheritance gives the provision enough leverage to prevent litigation.
Include a No-Contest Clause If You Are Leaving Unequal Inheritances
Unequal inheritances create one of the clearest reasons to consider a no-contest clause.
Suppose a parent has three children and a $2 million estate. Two children will receive $800,000 each. The third will receive $400,000 because the parent previously made substantial lifetime gifts to that child. The third child may strongly dislike the decision, but a properly drafted no-contest provision changes the economics of a lawsuit. The child must decide whether challenging the plan is worth risking $400,000.
The deterrent depends on leaving something meaningful to lose.
The Massachusetts Appeals Court addressed this principle in In the Matter of the Estate of McLoughlin. The court discussed the deterrent purpose of an in terrorem provision and explained why a beneficiary must receive enough for forfeiture to operate as a genuine disincentive.
Complete disinheritance can create the opposite result. A child receiving nothing under the will may have nothing to lose by contesting it. A successful challenge could create an inheritance. An unsuccessful challenge leaves the child exactly where the child started.
A wills and trusts lawyer can compare the proposed inheritance with the potential benefit of a successful contest. A client who wants both an unequal distribution and litigation deterrence should consider whether the inheritance is substantial enough to make a challenge financially risky.
Include a No-Contest Clause If Someone Has Already Threatened to Challenge the Will or Trust
A threat to fight the estate plan gives the drafting attorney something important: advance notice of the likely dispute.
One child may insist that the family home was promised to them. A sibling may accuse another sibling of controlling an aging parent. Adult children may believe a new spouse is receiving too much. A business owner may know that only one child should receive voting control while the others expect equal ownership.
Each conflict can produce a different lawsuit.
A will dispute lawyer evaluating the risk should determine what the potential contestant is likely to attack. A threatened challenge to testamentary capacity is different from a challenge to a trust amendment, a claim of undue influence, an objection to a fiduciary appointment, or an attempt to invalidate a particular transfer.
Generic language stating that anyone who “challenges my estate plan” receives nothing may fail to address the actual proceeding.
Advance threats also make the estate planning attorney’s file especially important. The client’s reasons for the distribution should be documented while the client can explain them. Meetings may need to occur outside the presence of favored beneficiaries. The attorney should confirm that the client understands the property, beneficiaries, proposed distributions, and effect of the no-contest clause.
A no-contest provision can discourage a threatened lawsuit. It cannot cure an invalid instrument or compensate for weak evidence showing that the estate plan actually reflects the client’s independent intent.
Include a No-Contest Clause If a Major Late-Life Change Is Likely to Draw a Challenge
A dramatic change late in life can be completely legitimate and still look suspicious after death.
Litigation risk can increase when a parent removes a longtime beneficiary, sharply reduces one child’s inheritance, leaves substantially more to a caregiver, favors a new spouse, transfers a family business to only one child, or signs a significant trust amendment after years without changing the plan.
The clause should not be the only protection.
Consider a business owner who leaves the company to one daughter while the other children receive investment property. A file stating only that “the client wants the daughter to receive the business” provides little explanation.
A stronger record would establish that the daughter has operated the company for 20 years, the other children have no involvement in the business, the client understands the company’s approximate value, and the other children are deliberately receiving different assets.
The difference becomes important if a beneficiary later claims the favored child manipulated the parent. A Massachusetts estate planning attorney can document the reasons for a substantial change while the client is alive and able to explain the decision.
A no-contest provision adds financial pressure against speculative litigation, while careful estate planning creates evidence supporting the disputed decision itself. Clients making significant late-life changes generally need both.
Include Separate No-Contest Clauses If You Want to Protect Both the Will and the Trust
A no-contest clause in a trust does not automatically protect a separate will.
The Massachusetts Appeals Court addressed this problem directly in Savage v. Oliszczak. The decedent had a will and a separate living trust. The will directed probate property into the trust, and the trust contained an in terrorem clause. Beneficiaries later challenged the will.
The court held that the will contest did not trigger the trust provision.
The trust had independent legal significance, and the beneficiaries attacked the will rather than the trust. The court would not expand the forfeiture language merely because the two documents operated together as parts of the same estate plan.
The drafting lesson is straightforward. A client concerned about a will contest should include appropriate protection in the will. A client concerned about an attack on a revocable trust or later trust amendment should address those proceedings in the trust.
The attorney should also identify other transactions a disappointed beneficiary may attack. Litigation might target a late beneficiary designation, ownership transfer, trust amendment, or another nonprobate transaction instead of the will.
A Massachusetts wills and trusts lawyer should map the anticipated dispute to the legal instrument most likely to become the target instead of assuming one boilerplate clause protects everything.
Do Not Include a No-Contest Clause as Your Main Deterrent If the Beneficiary Receives Nothing
A forfeiture clause needs leverage.
Assume an estranged son receives $250,000 under a will containing a no-contest provision. Filing a prohibited challenge could cost him $250,000.
Now assume the will completely disinherits him.
A successful contest could give him significantly more. Losing the contest leaves him with the same zero-dollar inheritance he already had.
The financial deterrent disappears.
McLoughlin reinforces the practical purpose behind giving the potential contestant something meaningful to lose. Clients sometimes treat complete disinheritance and litigation deterrence as the same objective, but the two can point in opposite directions.
Complete disinheritance may still reflect the client’s genuine wishes. A parent should not leave money to someone merely because litigation is possible. An estate lawyer in Massachusetts should instead explain that a no-contest clause may offer little leverage against a beneficiary who already receives nothing.
Other protections become more important in that situation. The attorney may need unusually clear documentation of capacity and intent, careful execution procedures, consistent beneficiary designations, and an estate plan that eliminates ambiguities a contestant could exploit.
Include Limits If the No-Contest Clause Covers Challenges Against a Trustee
Protecting a trust from attack is different from protecting a trustee from accountability.
A settlor may want to prevent a beneficiary from trying to invalidate the trust merely because the beneficiary dislikes the distribution. The same settlor may still want beneficiaries to demand an accounting, enforce mandatory distributions, or challenge serious fiduciary misconduct.
Massachusetts law recognizes an important distinction between attacks on the validity of a trust and claims involving a person’s conduct.
In Sacks v. Dissinger, the Massachusetts Supreme Judicial Court explained that a trust contest focuses on whether all or part of the trust is valid. Other claims can focus instead on harm caused by particular conduct without seeking to invalidate the trust itself.
Trustees also owe a statutory duty of loyalty, including a duty to administer the trust solely in the interests of the beneficiaries.
Trust language can nevertheless reach fiduciary-removal proceedings when it is drafted to do so. Caputo v. Moulton involved a no-contest provision addressing a beneficiary who unsuccessfully sought removal of a trustee. The Appeals Court did not ultimately decide whether forfeiture occurred, but the case demonstrates how specifically the language can reach trustee-removal activity.
A trust litigation lawyer may therefore need to distinguish an attack on the validity of the trust from a proceeding involving administration or fiduciary conduct. A clause written so broadly that beneficiaries fear questioning serious trustee misconduct may protect far more than the settlor intended.
Include Precise Language Defining Exactly What Counts as a Contest
“Challenge my estate plan and you get nothing” sounds powerful.
It may not be precise enough.
Does a challenge include filing an objection to probate? Joining another beneficiary’s lawsuit? Financing the litigation? Signing an affidavit? Providing testimony? Seeking interpretation of an ambiguous trust provision? Asking the court to remove a trustee?
McLoughlin demonstrates why the verbs matter.
A beneficiary supplied an affidavit supporting his brother’s effort to pursue a late objection to their father’s will. The Probate and Family Court concluded that his conduct triggered the no-contest clause.
The Appeals Court reversed.
The provision applied when a beneficiary contested the will or “instituted or joined” specified proceedings. Providing an affidavit did not mean the beneficiary had instituted or joined the contest. Massachusetts courts construe forfeiture provisions narrowly and will not necessarily add prohibited conduct that the document never identified.
A will dispute lawyer examining the clause after death will therefore focus closely on the conduct the document actually prohibits. A clause aimed at an undue-influence challenge may need different language from one intended to reach an attack on a trust amendment. Participation in another beneficiary’s lawsuit may require separate treatment.
Broad threats are not a substitute for precise legal drafting.
Include Clear Instructions for Who Receives a Forfeited Inheritance
A $500,000 forfeiture creates an immediate second question:
Who gets the $500,000?
The answer might be the contestant’s siblings, the contestant’s children, another trust, a charity, or the residuary beneficiaries. The document may instead provide that the contestant is treated as having died before the testator.
Each option produces a different result.
Treating the contestant as predeceased can create another question about descendants. Does the contestant’s child step into the parent’s place, or does the entire branch of the family lose its interest?
Massachusetts precedent illustrates why the distinction matters. In Old Colony Trust Co. v. Wolfman, the Supreme Judicial Court enforced a forfeiture against a beneficiary who contested a will but separately considered the interests of the beneficiary’s possible descendants. The contestant’s forfeiture did not automatically erase every interest belonging to people who had not themselves contested the will.
A trust planning attorney should also define when forfeiture occurs.
Merely filing an action, joining a proceeding, and unsuccessfully pursuing a claim are different triggering events. Caputo involved language specifically referring to an unsuccessful attempt to remove a trustee. The word materially limited the scope of the provision.
The disposition of the forfeited share should be planned as carefully as the penalty itself.
Include a No-Contest Clause Only If the Likely Person Challenge and Penalty Are Clear
A useful no-contest clause should answer three questions before anyone signs the estate plan.
Who is likely to challenge it?
Family hostility, prior threats, unequal distributions, second marriages, business ownership, or a valuable piece of real estate may identify the likely contestant.
What are they likely to challenge?
The answer may be the will, the validity of a revocable trust, a trust amendment, an allegedly improper transfer, or another specific transaction. Massachusetts also imposes strict timing rules on some trust contests. General Laws Chapter 203E, Section 604 generally requires a proceeding contesting the validity of a revocable trust to begin within the earlier of one year after the settlor’s death or 60 days after the trustee sends the notice specified by the statute.
What will the person lose?
The threatened inheritance needs enough value to create a real choice between accepting the plan and risking forfeiture through litigation.
Those answers give a Massachusetts estate planning lawyer a concrete risk to address rather than a vague fear of future family conflict.
Some families need better evidence of testamentary capacity rather than a harsher penalty. Others need a neutral trustee, better treatment of lifetime gifts, clearer beneficiary designations, or more precise trust terms. A family already fighting over a closely held business may need tax and business planning in addition to estate-litigation protection.
No-contest language should address an identifiable threat instead of appearing in every will as boilerplate.
Protect Your Final Wishes With a Massachusetts Wills and Trusts Lawyer
A Massachusetts wills and trusts lawyer can determine whether a no-contest clause will deter a foreseeable inheritance dispute and draft the penalty around the specific will or trust at risk. Contact Correira Law today.
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