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IN TERROREM – AS SCARY AS IT SOUNDS?

Contesting the terms and provisions of a Will or the mental capacity of the testator can be difficult in Massachusetts. The burden of proof lies with the party raising the challenge and that burden is often hard to overcome.  The probate court judges in Essex County and Middlesex County and throughout Massachusetts are experienced and knowledgeable. They will expect facts and require proof.  In addition, if the contesting party cannot prove its case it could be subject to an award of attorney’s fees to the other side.  While this sounds scary, if you have a reasonable or good faith basis to challenge a Will, you are entitled to make your case.   Before proceeding you should first consider whether or not the Will contains an in terrorem clause.

An in terrorem clause, or “no-contest clause” is:

commerce-acts-books-477966-mfrom Latin for “in fear,” a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will. The clause is intended to discourage beneficiaries from causing a legal ruckus after the will writer is gone. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause also fails. So a prospective challenger takes his/her chances. TFD, copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.

In terrorem clauses are enforceable in Massachusetts.  Unless the Will is set aside (for undue influence, lack of capacity or the like), then the no-contest provision will likely be enforced, leaving the will challenger with nada.  In addition, the challenger could be subject to an award of attorney’s fees to the other side.

The Massachusetts Appeals Court recently ruled on this issue in a case appealed out of the Superior Court where the Will had been filed with the Probate Court[1] and included an in terrorem clause. No one had objected to the Will, the Probate Judge allowed it, and the estate was probated.  More than two years later a legatee filed an action in the Superior Court alleging that the defendants “fraudulently or improperly caused the decedent to divert assets to them during her lifetime”.  The Will had an in terrorem clause stating that “If any beneficiary…shall contest the validity of my Will or …shall institute… any proceeding to contest the validity of my Will, then all benefits provided for such beneficiary are revoked …”  The Superior Court judge applied the in terrorem clause and determined that the clause deprived the challenger of any right of recovery.

In his appeal of this ruling to the Appeals Court, the appellant claimed that the in terrorem clause did not apply because he was not “contesting the Will” but rather filing a separate (equity) action in Superior Court.  The Appeals Court did not buy the argument.  It found that however characterized, the suit challenged the Will’s provisions regarding distribution of assets.  The Appeals Court determined that because of the terrorem clause, once he asserted the claims in the lower court, he was no longer a legatee and no longer had any standing to challenge the Will[2].

The Sinnott decision is a summary decision, which means that it is not binding precedent, but it is persuasive.  It also gives a good indication of how the Courts evaluate and honor an in terrorem clause.

Does this mean that one should never challenge or contest a Will? Absolutely not!  It just means that if you are considering challenging a Will, you should know whether or not there is an in terrorem clause and what the consequences of that clause could be to the outcome.  Also, you must have a solid, good faith basis to challenge or contest the Will.   These are some of the topics you should discuss with an experienced probate attorney if you are considering a Will contest.  The more facts and information you have, the more informed your decision can be.

[1] Sinnott v. Sinnott, Commonwealth of Massachusetts Appeals Court Case No. 14-P-1653,

[2] See also M.G.L. c. 230, s. 5.