In a September 2024 decision, the Massachusetts Appeals Court ruled that an estate beneficiary did not invoke the in terrorem clause under his father’s will by submitting an affidavit in support of his brother’s challenge to the will. 

Also known as no-contest clauses, in terrorem clauses revoke the inheritance of anyone who challenges the validity of a will or trust. Historically, Massachusetts estate planners have included these clauses to deter frivolous litigation and mitigate familial disputes. 

Though Massachusetts courts have recognized and enforced in terrorem clauses for almost a century since Rudd v. Searles, 262 Mass. 490 (1928), these clauses are narrowly construed. The recent case, In the Matter of the Estate of William F. McLoughlin, 104 Mass. App. Ct. 752 (2024), demonstrates that Massachusetts courts remain reluctant to broaden the application of in terrorem clauses.

THE FACTS

In In the Matter of the Estate of William F. McLoughlin, William F. McLoughlin Sr. executed a will in 2020 that included an in terrorem clause which read in part: 

If any beneficiary hereunder shall contest the probate or validity of this will…or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this will…then all benefits provided for such beneficiary are revoked…

Mr. McLoughlin died 35 days later, leaving assets to all of his children, except for one son, William Jr. After the Probate and Family Court accepted the 2020 will for probate, William Jr. moved to file a late objection to the will, asserting that he was unaware of the 2020 will and that the will was invalid based on his father’s mental state at the time of its writing. William Jr.’s brother, Sean, submitted an affidavit “in support of” William Jr.’s motion. The affidavit corroborated William Jr.’s account, alleging that his other siblings never spoke with William Jr. about the 2020 will. Sean further stated that, by 2020, their father had been suffering from Alzheimer’s and dementia for many years and his other siblings had manipulated him into signing the 2020 will.

In response, Sean’s sisters filed a motion asserting that Sean’s affidavit triggered the in terrorem clause in their father’s will. The Probate and Family Court agreed and ruled that Sean’s interest in the estate was subsequently revoked. Sean appealed the decision to the Appeals Court. 

THE DECISION

The Appeals Court ruled that, by serving as a witness, Sean neither “contested” the validity of the will, nor did he “institute or join in” a proceeding to contest the validity of the will. 

The Court held that Sean’s filing of the affidavit did not meet the technical legal definition of the word “contest,” which is a “judicial proceeding to determine the validity of a will.” Nor did Sean’s actions amount to “institut[ing] or join[ing] in” a proceeding to contest the validity of the will. Sean did not initiate the motion to allow the late filing of objection to the 2020 will and he did not join the action by appearing as a party. 

The Court concluded that “nothing here indicates that Sean engaged in conduct beyond appearing as a witness” and that “more active participation in the contest is required to trigger an in terrorem clause.” Indeed, in Massachusetts, the only cases where the Court has found there to be a violation of an in terrorem clause “are ones in which the individual was a party to the action challenging the will or trust.”

KEY TAKEAWAYS:

In light of the McLoughlin decision and the Court’s seeming commitment to interpreting in terrorem clauses narrowly, estate planners and testators alike should keep the following considerations in mind when including in terrorem clauses in estate plans.

• Don’t leave potential contestants emptyhanded. 

Some testators may choose to bequeath potential contestants some amount of assets so that they have an incentive not to contest the testator’s will or trust. The key is balancing the interests of the testator, whose preference may be to omit the person entirely, with ensuring the bequest is substantial enough to deter the beneficiary from bringing a contest for fear of forfeiting that bequest. 

• Be specific. 

While in terrorem clauses are often included to discourage litigation, estate planners may consider carving out exceptions for contests based on good faith and probable cause to ensure the testator’s intent is not overshadowed by undue influence, fraud or duress. 

In terrorem clauses may also be tailored to comply with the testator’s specific intent. For example, estate planners may wish to specify whether voluntary participation in support of a will contest or challenges to the appointment of a personal representative or trustee are either permitted or barred. 

Beneficiaries faced with an in terrorem clause should also navigate these clauses strategically. Although the Appeals Court decision allows beneficiaries to testify in relation to another’s challenge to a will, those beneficiaries who wish to challenge a will but risk losing their inheritance should consider the following:

• Seek a neutral determination. 

Prudent beneficiaries who are hesitant to contest a will may consider filing for a declaratory judgment. In some circumstances, this method may allow a beneficiary to determine whether certain actions, such as requesting clarification of an ambiguity in a will or filing an action for an accounting, would trigger the in terrorem clause, without risking dispossession of his or her beneficial interest.

• Consider the full picture.

Some estate plans include multiple avenues for the disposition of assets. While a beneficiary may have been disinherited under a will, he or she may have other resources passed to them, such as through a trust, an insurance policy, or another asset. Before challenging a will, beneficiaries should consider the entirety of the decedent’s estate.