In Massachusetts, a testator can include an “in terrorem” clause that creates a large disincentive for any beneficiary to challenge the validity of the will. In this clause, the testator declares that anyone who contests the will as a whole, or a provision of the will, forfeits his or her share, and the remainder is re-distributed to the other beneficiaries as if they had pre-deceased the testator and had no heirs of their own. An in terrorem clause may be invalidated along with the rest of the will if the testator was subject to undue influence or incompetent, but this is a difficult endeavor for the contester with potentially a lot at stake to lose.
In all contract matters, judges strive to strictly construe the terms of the document as written. This is seen in a recent Appeals Court decision, Sinnott vs. Sinnott (14-P-1653). In this case, one of two brothers disputed the assets of his mother’s estate, which included an in terrorem clause. He did not object to the probate of the will but later chose to file an equity action more than two years later, claiming other beneficiaries fraudulently or improperly caused the mother to divert assets to them during her lifetime. The judge presiding over the case agreed with the contesting brother that he had standing under estate law to pursue the claim as a residuary legatee, but the claim, even in equity, enacted the in terrorem clause and blocked any recovery.
The plaintiff disagreed with the judge’s ruling, arguing that the contest was not to the will as a beneficiary, but as a residuary legatee. The Appeals Court agreed with the judge’s determination that the suit was an attack on the will’s provisions, thereby enacting the in terrorem clause. The contesting son, at one point of the litigation, even agreed to that description of the suit. The Appeals Court felt the language of the will was very clear on when an in terrorem clause would take effect, and it affirmed the summary judgment in favor of the defendants.
Not all attempts to contest an in terrorem clause fail. In Savage vs. Oliszczak (77 Mass. App. Ct. 145), the children of a woman who designated a trust to be the sole beneficiary of her estate contested her will, arguing their mother lacked the testamentary capacity to execute a will and was under undue influence. The in terrorem clause was contained in the provisions of the trust, not the will. The children withdrew the challenge, but the plaintiffs moved the court for a decision on whether or not the in terrorem clause in the trust was triggered, forfeiting the childrens’ interest. The judge and the Appeals Court agreed that the will and the trust were not so intertwined that a contest to the will would enact the in terrorem clause in the trust. The summary judgment in favor of the children was upheld, which determined that the children did not forfeit their award.
Clear construction is important in any will or trust. The Massachusetts estate planning attorneys at Karsner & Meehan have the experience you need to assist you with your will or trust. For a confidential consultation today, call our office at 508.822.6600.
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