Individuals that reside in New Hampshire and Massachusetts will often consider placing within their will or trust documents an in terrorem or “no-contest” clause which generally prohibits beneficiaries under the trust or will from contesting, directly or indirectly, the will or trust. The reason is that they want to incentivize the beneficiaries not to fight with each other which would not only diminish assets in the will and trust, but also as their infighting may be worsen rifts between them. Such a provision can make a lot of sense in that as we all know it is tough to take back accusations, whether made in litigation or otherwise, and sometimes probate disputes can break up family relationships, particularly among siblings of deceased parents.
On December 14, 2017, a superior court judge in Massachusetts in the case of Ginsberg v. Ginsberg clarified that such a no-contest clause would not prohibit a beneficiary from making the challenge. If the no-contest clause states if a beneficiary challenges the will or trust he gets nothing, then he can still challenge but the consequence of him losing is more severe than if such a clause was not in the will or trust. If he is successful and therefore voids the documents that has the no-contest clause, depending on the circumstances he might get more. If he challenges a loses, he gets nothing.
It is for that reason that an individual who is considering a no-contest clause needs to consider giving enough incentive to the beneficiary to risk the challenge of the will or trust. For example: Bob has an estranged son Sam who Bob thinks that upon his death will blame his siblings Jane and Jack for convincing Bob that Sam is to get less than them under the will or trust. If Bob’s total estate is a million-dollars and Bob only provides $5,000 under the will or trust for Sam with the reminder to Jane and Jack, Sam may decide that it is worth challenging the will. However, if Sam was to receive $50,000 under the will and the remainder was to go to Jane and Jack, his unsuccessful challenge would not only incur him legal fees, but he could lose the $50,000 he would have otherwise received and that might enough of an incentive for Sam not to make the challenge.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].