In terrorem or “no contest” provisions in wills and trusts are meant to avoid litigation by penalizing the party that files suit. They typically say that if an heir challenges the validity of the will or trust, they will lose their inheritance.
The Case
In the case of David Walton v. Derek Walton (Mass. App. Ct. 25-P-380, Dec. 18, 2025), Elizabeth Walton left her estate more or less equally to her two sons David and Derek. Her will included the following in terrorem clause:
[If a beneficiary] in any manner, directly or indirectly, attempt[s] to contest or oppose the validity of my Last Will and Testament, or commences, continues, or prosecutes any legal proceedings to set this my Last Will and Testament aside, [then] such person shall forfeit his or her share [and cease to have any interest in the estate. It further provides that if any person] [f]iles a petition or other pleading to change the character (community, separate, joint tenancy, partnership, domestic partnership, real or personal, tangible or intangible) of property already so characterized by a Document, [then that person’s rights or interests in the estate will be forfeited.]
In other words, the clause could be triggered either by a challenge to the validity of the will or an attempt to change the ownership of any property passing under the will.
A dispute arose because Derek believed that Elizabeth intended for him to be able to live in the family home in Mashpee for the the rest of his life. David, who lived in Florida, wanted Derek to buy out his interest, but they could not agree on a price. Derek thought they should use a valuation from the year Elizabeth died, 2018, and David thought a more current and higher 2023 valuation should be used.
When the negotiations reached an impasse, David filed a partition action to have the property sold and the proceeds divided between the two brothers. In response, Derek filed an equity action seeking a declaratory judgment that he was given the right to remain in the property for life.
David then argued successfully that Derek’s action triggered the in terrorem clause and as a result Derek had forfeited any right he had to the Mashpee property. Derek appealed.
The Decision
In reviewing the probate court’s decision, the Court of Appeals starts by explaining that under Massachusetts law in terrorem clauses are to be construed narrowly. With this in mind, the Court rules that in seeking a judicial determination that he received a life estate in the Mashpee property Derek was neither challenging the validity of the will nor trying to change the character of his ownership interest. He was simply asking the court to determine his interest.
Further, Derek did not start the litigation. He was simply responding to litigation brought by his brother.
The Court of Appeals then turns to the substantive question of whether the language of Elizabeth’s will gave Derek a life estate in the property. Here’s what she said:
I grant my sons, David ․ and Derek ․, the right to use and occupy my property located at 21 Sunset Strip, Mashpee, MA. Said occupant(s) will be responsible for necessary maintenance, real estate taxes, utilities and insurance expenses on the property while occupying the property. Should neither David ․ nor Derek ․ choose to live in the home, all such costs would be divided equally between them. If either decides to sell the property, then the other must be given the opportunity to purchase his brother’s share in the home at either a mutually agreed upon price, or if a price cannot be agreed upon, then at fair market value as determined by a licensed, independent real estate appraiser. If the other is unwilling or unable to purchase his brother’s share, then the property shall be sold and the proceeds will be split equally between David ․ and Derek ․, per stirpes [emphasis omitted].
The Court finds this language to be ambiguous, in large part because it’s not clear whether either brother can force a sale of the property at any time or only if neither is living there.
The Court, therefore, vacates the probate court’s ruling in favor of David and remands the case back to the probate court for a trial to determine Elizabeth’s intent. It further refers the case back to the probate court for a determination of whether David had made an enforceable promise to Derek to permit him to live in the property for the rest of his life. This issue will only have to be addressed if the probate court determines that Derek does not have a life estate under the above terms of Elizabeth’s will.
Use a Trust, Not a Will
While this decision reiterates the policy that in terrorem clauses are to be construed narrowly, I think it also stands for the proposition that if someone wants to give heirs something other than a clear property interest they should use a trust. Elizabeth laid the ground for this dispute by not using clear language, such as “life estate” or “tenants in common” in describing Derek and David’s interest in the Mashpee property. Instead, she created some form of a right to use and occupy the property along with ambiguous provisions for its sale.
A good rule of thumb is that wills should be used solely to convey property. If you want to create something more complicated, such as a right of use and occupancy with provisions for paying costs and the property’s sale, then use a trust. With a trust, it’s clear that the beneficiaries are not owners and it’s up to the trustees to determine their rights and obligations.
Of course, trusts can be ambiguous too. If Elizabeth had used the same language and Derek and David had been trustees who could not agree on what she meant, they still might have ended up in court, but at least the issues would have been simpler. David would be suing as a beneficiary to enforce his rights, not as a purported owner of the underlying property. There would be no question of enforcing the in terrorem clause.