Some wills contain so-called “in terrorem” or “no contest” clauses that disinherit any heir who challenges the will or probate proceedings. These clauses may be written narrowly, only penalizing challenges to the validity of the will and its provisions, or more broadly, penalizing objections to the choice of personal representative.
Parents often include in terrorem clauses when they choose to disinherit children or favor some children over others. (We always counsel that they don’t completely disinherit such children, because if the child is receiving nothing under the will, there’s actually no penalty for challenging it.)
William McGloughlin’s Will
In In the Matter of the Estate of William F. McLoughlin (Mass. App. Ct. No. 23-P-770, September 30, 2024), the decedent, William F. McLoughlin, Sr., included the following “No Contest Provision” in his will:
If any beneficiary hereunder shall contest the probate or validity of this will or of any of the beneficiary designations in place in connection with any of my qualified plans, IRAs, life insurance policies or any other asset of mine passing outside of this, my last will, or any provisions thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this will or any provisions I have made during my lifetime for the distribution of my assets, whether probate or non-probate in nature, or to prevent any provision thereof from being carried out in accordance with its terms, then all benefits provided for such beneficiary are revoked, and such revoked benefits shall pass to the residuary beneficiaries of this will (other than such beneficiary).
Mr. McLoughlin executed his will in September 2020 and died 35 days later survived by six children. His will gave different real estate to two sons, Sean and Thomas, and split the rest of his estate among five of his children, excluding William Jr. William Jr. subsequently filed a motion asking for leave to file a late objection to the will saying he was not given notice of the “new” 2020 will. Sean submitted an affidavit in support of William Jr.’s motion for late filing. The affidavit also said that their father had suffered from dementia beginning in 2007 and that several of the children isolated and controlled Mr. McLoughlin.
This was followed by cross motions filed by various children as to whether Sean’s affidavit triggered the in terrorem clause. The probate ruled that it did and holding “that benefits provided for Sean in the [w]ill are revoked, and such revoked benefits shall pass to the residuary beneficiaries of the [w]ill (other than Sean).”
Sean Appeals
Sean appealed this decision to the Court of Appeals. The Court first explains that in terrorem clauses are to be construed narrowly “because equity does not favor forfeitures.” Reading the clause in Mr. McLoughlin’s will narrowly, the Court rules that to “contest” the will, Sean would have had to have entered into a proceeding to challenge it himself. Since, instead he simply provided an affidavit supporting William Jr.’s action, it holds that “Sean did not ‘contest the probate or validity’ of his father’s will.”
The Court also finds that Sean did not “join in” any proceeding to contest the will. Instead, his “involvement was that of a witness. Construing this in terrorem clause narrowly, Sean’s act of providing an affidavit . . . submitted in support of William Jr.’s motion did not amount to contesting or to instituting or joining in a proceeding to contest the validity of the will sufficient to trigger the clause.”
What Would Trigger the No-Contest Clause?
The Court then conducts a review of similar cases in different states around the country and finds that they too do not penalize heirs who act simply as witnesses in will contests. “Nothing here indicates that Sean engaged in conduct beyond appearing as a witness; typically, more active participation in the contest is required to trigger an in terrorem clause.” For instance, in an 1881 case the clause was triggered when a brother funded and advised his sister’s will contest. In a much more recent 2019 Nebraska case, the heirs paid a contesting party to bring the action.
So, if you don’t want to trigger an in terrorem clause, you may act as a witness, but don’t participate in the will challenge in any other way.