No Contest Clauses (in terrorem clauses)
In Massachusetts, a no-contest clause is given full force and effect. Therefore, if the settlor so chooses, a clause can be included in a will to disinherit an heir who attempts to challenge the will’s provisions. But be aware: if a trust is set up, such a clause should be included in each separate document to ensure it will be applied.
A Massachusetts case came down this past year in which a no-contest provision was included in the decedent’s trust, but not her will. The decedent had executed a will and a pour-over trust, which, upon her death, transferred her assets to the trust through her will. The decedent’s heirs challenged the will on the grounds of lack of testamentary capacity, duress and undue influence.
The Massachusetts Appeal’s Court refused to read the will and trust together and found that the documents were not so intertwined that a challenge to one also defeated the other. The Court pointed out that the trust document, unlike the will, is not made public. Thus, not only are heirs usually unaware of the terms of the trust making it unfair to hold it against them, but the deterrent effect of such clauses are lost.