Does A No Contest Clause Really Work?

You’ve probably heard horror stories of disgruntled heirs contesting a parent’s Will to try and get their “fair share” of an inheritance. While uncommon, it is particularly concerning when dealing with favoritism, children who have substance abuse or gambling issues, blended families, or illegitimate children. Fortunately, under Massachusetts law there are a few steps you can take to deter unwanted litigation – one of which is called the no contest clause (sometimes referred to as an “in terrorem” clause).

So what’s a no contest clause?

Essentially it’s a penalty applied to anyone who tries to dispute the terms or validity of your Will. In other words, if a person challenges or contest the Will, then that person will be completely cut off. Of course, if that person is completely omitted anyway then they have little to lose by litigating the issue.

For example, let’s say Bob leaves half his estate to his favorite daughter Susan, but only a small portion to his son John who he hasn’t seen in years. In certain situations, if John can prove the Will is the product of undue influence or otherwise invalid, then John may be able to get a bigger inheritance via intestate succession laws. Therefore, John may be incentivized to contest the Will. However, if Bob was smart enough to include a no contest clause, then John may think twice before challenging the Will because if John loses then he ends up with nothing, whereas if he chose to do nothing then he would at least get a small inheritance.

However, as mentioned above, no contest clauses aren’t a perfect solution since someone may want to omit a child entirely. There’s also the possibility of the court not enforcing the clause if the disgruntled child had a good faith argument for contesting the Will. Therefore, you should speaking with an experienced estate planning attorney when deciding whether a contest clause makes sense for you.

If you have any questions about estate planning, then please feel free to contact Joseph Lento at Perennial Trust by calling (781) 202 – 6368 or emailing jlento@perennialtrust.com. You can also download our Free Estate Planning Guide. Thanks for reading!