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Penalty for contesting a will in Massachusetts?

I haven't gotten along very well with my father over the years but we always maintained our relationship. Now he is suffering from what I believe to be some form of dementia. His new girlfriend and I really don't get along and I believe, based on conversation I've had with my father, that the girlfriend is trying to get him to change his estate plan so that everything goes to her, even though my dad has always said he wanted to leave some assets to me, his only child. Two questions, is it possible to disinherit a child in Massachusetts legally. And if you can and he does because of undue influence by his girlfriend is it true that if I challenge the will that I will lose whatever he did leave to me in the will?

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Yes, it is absolutely possible and perfectly legal to disinherit a child in Massachusetts (Subject to the one limitation discussed in a follow-up post below).  Typically, the drafting attorney will use very specific language to get the job done.  As to your second question, if your father includes language in his will, known as a "penalty clause" to void any bequest made in the will to the challenging party, that clause is enforceable.  The new MA Probate Code specifically states that any clause in a will that penalizes an "interested person for contesting the will or instituting other proceedings relating to the estate is enforceable."  See Massachusetts General Laws Chapter 190B, Section 2-517.

So there is a bit of a gamble involved.  However, wills usually contain a penalty clause.  That is not unusual, but wills do get challenged.  The key is to get good advice from an experienced probate attorney who can tell you, based on the facts known to you, whether it is a good gamble to contest the will.  Good luck.

Editor wrote: > Yes, it is absolutely possible and perfectly legal to disinherit a child in Massachusetts. Great. However, would you please comment on how the new section 2-403 places limits on a parent's right to disinherit children? For instance, the commentary in Section III of this link (dated 2012-02-15) has me extremely concerned!
At face value the commentary implies that disinheriting is simply not possible and descendant children must be provided a certain inheritance (I couldn't understand the explanation). For my case this is absurd! My rogue second son is age 45, perfectly healthy, we broke off dialog 12 years ago, has made serious phone threats of physically harming me (such that I invoked the Police)... and now the new law would dictate that he is entitled to something from my estate? #$%^@*! Enough said, thank you for any comments you may provide.

Yes, you are correct:  There is one little wrinkle to this issue that you can read about in this post discussing disinheriting children.

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