Page 35 - BusinessWest January 6, 2021

To Contest or Not to Contest?
That Is the Question When It Comes to Wills and Trusts
NBenjamin Coyle, Esq.
one of us want to think that, after we
pass away, our loved ones may some- day fight over an inheritance. But as we
erty, both real and personal, upon their passing. In most circumstances, that document is either a last will and testament or a trust. A question
Probate Code (UPC), a model code adopted by 18 states in order to standardize probate laws. However, in adopting the UPC, Massachusetts did not incorporate the model’s no-contest pro- vision, which essentially allowed for challenges or contests where probable cause exists. Rather, Massachusetts determined that the Common- wealth would maintain its historic baseline regarding no-contest provisions, and, in doing so, the Legislature provided that such clauses are enforceable as a matter of law, subject to some limitations as determined by the court.
Generally speaking, a no-contest provision is a clause within a will or trust with specific lan- guage stating that any person who challenges the estate must then forfeit their share. One of the primary purposes of including such a provision is to deter an interested person from bringing a challenge against the estate.
Typically, if an interested person believes they are not receiving what they may consider to be their fair share of the estate, that perception can provoke a desire to fight the terms of the will or trust. Emotions tend to run particularly high if
a sibling or family member may receive a larger portion, or if someone is left out of an estate alto-
Contest
Continued on page 45
“Family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always gotten along well may find themselves at odds. Keeping peace in
the family is often a vital consideration in estate planning.”
that often arises during the drafting process is: “what can I do to make sure that no one fights over my estate?”
While an attorney can never guaran- tee that heirs or beneficia- ries will not fight, there are
all know, family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always got- ten along well may find themselves at odds. Keeping peace in the family is often a vital consideration in estate planning.
One of the most important components of a person’s estate plan is the document that ulti- mately directs the final disposition of their prop-
provisions that can be made to deter an inter- ested person from contesting the terms of a will or trust. For wills, Massachusetts law recognizes a provision purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate. For trusts,
the courts in Massachusetts have upheld the enforceability of ‘no-contest’ (or ‘in terrorem’) clauses.
In 2012, Massachusetts adopted the Uniform
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