A will details the way the deceased person’s assets are to be distributed, but sometimes someone will try to contest, or challenge, the will if he does not receive the inheritance to which he believes himself entitled. Consequently, you can insert a clause in your will to discourage challenges to the will’s validity, perhaps making a challenger think twice before acting.
A no-contest clause, also called an “in terrorem” clause, is meant to discourage challenges to the will by preventing challengers from receiving benefits from the will. Thus, if you deliberately give one child a larger inheritance than the other, the child with the smaller inheritance may avoid challenging the will in fear that he will lose even the small inheritance and be left with nothing. Massachusetts enforces these clauses, but Massachusetts courts will not punish a challenger if his challenge is successful.
To challenge a will at all, you must have standing, meaning you must have some interest in the outcome of the challenge. Often, this limits challengers to those who were beneficiaries under a prior will that gave them better rights or those who would inherit under Massachusetts law if there was no will. For example, if you left half your estate to your brother in a previous will but left nothing to him in your most recent will, he would have standing to challenge your will. On the other hand, if you never named your friend in any will, he would not have standing to challenge your current will since he does not stand to gain from a successful challenge.
Grounds and Proof
An interested person can contest a will on any grounds that would make the will invalid. For example, if the deceased person may have been mentally incompetent at the time the will was signed, you could base your challenge on his lack of capacity to sign. Similarly, if the deceased person was in a weakened state and was under pressure from a caregiver to change his will, you could contest the new will based on the undue influence of his caregiver. The standard of proof in a will contest is “preponderance of the evidence,” which means that there must be more evidence supporting your challenge than there is evidence against it.
A no-contest clause does not mean you cannot bring a challenge. Rather, it means you will lose your share of anything you may have received under the will unless your challenge is successful. Thus, it may be to your advantage to thoroughly assess your risk of losing before you bring a contest. For example, if you received far less under the new will than you would have received under the old will, it may be worth the risk to contest the will. If the difference is only slight, it may not justify gambling on a challenge.