“No-Contest” Clauses: Should You Say “No Contest”?

Many wills and trusts have what are known as incontestability or no-contest clauses. These clauses essentially state that anyone who is entitled to a benefit under the will or trust and who chooses to challenge it forfeits any benefits he or she might get under that will or trust.

That clause, standing alone, is a red flag to many people who would otherwise choose to challenge a will or trust. Fortunately, the red flag isn’t as imposing as it seems.

Massachusetts courts have consistently enforced these provisions. However, they have also said quite clearly that nobody is barred from making a successful challenge to a will or trust and having their share of that will or trust evaporate. In other words, you can undertake such a challenge, but you had better be sure you either win the case or settle it.

In this regard the law makes a great deal of sense. After all, fairness dictates that if a will or trust is the product of undue influence, or if it is executed without sufficient mental capacity, someone whose interest in that will or trust is adversely affected by that action should be able to challenge it.

So when you see a no-contest provision in a will or trust, do not assume that your legal rights are closed off. This having been said, you want to make sure that any challenge you make has sufficient merit. If, for instance, you got 20 percent of mom’s estate and feel that you should have gotten 40 percent, you are best off securing the advice of an attorney, who can assess the risk and expense of challenging that 20 percent “difference”. By contrast, if a prior will gave you 80 percent of mom’s estate and the amended will gives you 20 percent, that may present a scenario more appropriate to risk the challenge. Just know that if you lose at trial, under the no-contest clause you lose even the 20 percent you’d have received had you not undertaken the challenge.

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