In 2017 Elizabeth Walton passed away leaving her home in Mashpee to her sons, David and Derek.
In clause three of her will, Elizabeth states “I grant my sons, David…and Derek…, the right to use and occupy my property located at 21 Sunset Strip, Mashpee, MA.“
From this language, it’s unclear exactly what type of ownership Elizabeth gave to her sons. Were they owners as tenants in common? Or did they acquire only a life estate interest to the property?
(For an explanation of real estate tenancy, see my post Real Estate: Joint Ownership.)
To make matters worse, Elizabeth’s will included an in terrorem clause. Under the terms of this clause, an heir would forfeit his inheritance if he challenged the terms of the will.
According to court documents, a spat arose between the brothers shortly after the will was administered.
David allegedly wanted to sell his interest to Derek.
The two siblings couldn’t agree on a price and David ultimately filed a petition to partition the house.
In response, Derek filed a separate equity action seeking a declaratory judgment which would determine the actual nature of the brother’s legal ownership of the property.
Essentially, Derek allegedly wanted the court to clarify whether he and David were tenants in common or just life estate holders.
According to court documents, David claimed that Derek’s lawsuit triggered the will’s in terrom clause.
A trial level judge agreed with David. The judge ruled that Derek forfeited his inheritance by filing the equity action.
Derek appealed.
The Appeals Court reversed the lower court’s decision.
In their slip opinion, the justices write,
we conclude that Derek’s filing of the equity complaint did not trigger the no contest provision of the decedent’s will. As we have noted above, the purpose of the in terrorem clause is to deter challenges to a will. Derek did not contest the validity of the will by filing an objection. Rather, in response to David’s filing of a petition for partition of the property, Derek filed his claim in equity seeking a judicial determination that he and David each received a life estate in the decedent’s property. (Citations omitted.)
The Appeals Court then examined clause three of Elizabeth’s will.
it is not clear from reading clause three whether that interest is a life estate, a tenancy in common, or some other lesser right to use and occupy the property. David argues that the third clause is unambiguous and created a tenancy in common. While we agree that the decedent did not use the typical language associated with the grant of a life estate, such as conveying the property “for life” or “until the death” of the beneficiary, courts have held that the absence of those words does not foreclose the possibility that a life estate was still created. We also note that the decedent did not use the words “bequeath” or “devise” when referencing the property’s title; rather, she used the words “the right to use and occupy.” The decedent further provided that whoever resided at the property was required to pay taxes and insurance and perform necessary maintenance. This language is more suggestive of the creation of a life estate or perhaps a lesser right of use and occupancy. (Citations omitted.)
The full text of the slip opinion is attached below.