David J. Walton v. Derek R. Walton.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-380

DAVID J. WALTON

vs.

DEREK R. WALTON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Derek Walton (Derek) appeals from a summary judgment and a

decree in these consolidated matters by a judge of the Probate

and Family Court in favor of his brother, David Walton (David),

involving a dispute about property located at 21 Sunset Strip in

Mashpee (the property). Derek claims that a genuine issue of

material fact remains as to their mother's intent regarding the

property and that the in terrorem clause contained in the will

should not be enforced in response to his filing of an equity

action. We agree with Derek and, accordingly, vacate both the

summary judgment and decree and remand this matter to the

Probate and Family Court for further proceedings consistent with

this memorandum and order.
Background. The facts are largely undisputed. The parties

are the children of Elizabeth Walton (decedent), who died

October 29, 2017. The decedent executed a last will and

testament (the will) dated October 26, 2016, that contained a

variety of provisions directing the distribution of her assets

mostly to two of her sons, David and Derek. The will named

Derek and David as the personal representatives of the estate.

The will granted David and Derek an interest in the property,

and bequeathed the remainder of her estate, consisting of real

and personal property, in equal shares to them, per stirpes.

The will also contains an in terrorem clause, which functions to

disinherit a beneficiary who contests the validity of the

decedent's will.

In May of 2018 David and Derek filed a petition to

informally probate the decedent's will and requested that they

both be appointed as personal representatives of the estate.

Derek claims that it was then that he and David discussed the

decedent's intentions regarding the property. According to

Derek, David assured him that he was aware of their mother's

intentions and promised that he would not interfere with Derek's

life estate in the property. In June 2018, the petition for

informal probate of the decedent's will and for David and Derek

to act as personal representatives was allowed.

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Shortly after the decedent's death, Derek moved into the

property while David remained in Florida. In 2022, David began

requesting that Derek purchase his ownership rights of the

property under the procedure provided for in the will.1

Ultimately, the brothers could not agree on a purchase price, as

Derek wanted to purchase the property using a valuation from

2018, which was significantly lower than the projected market

value in 2023. In September 2023, after negotiations seemingly

arrived at an impasse, David filed a petition to partition the

property in the Probate and Family Court. The petition

requested that David and Derek be declared tenants in common, to

have the property sold at full market value, and for the

brothers to split the proceeds. Derek filed a separate equity

action claiming that David was estopped from seeking partition

of the property because he promised that Derek could "reside,

[and] maintain his life estate in the [property] without

interference." Derek also sought a declaratory judgment, asking

1 The will provides the following procedure to sell the
property: "If either [Derek or David] decides to sell the
property, then the other must be given the opportunity to
purchase his brother's share in the home at either a mutually
agreed upon price, or if a price cannot be agreed upon, then at
fair market value as determined by a licensed, independent real
estate appraiser. If the other is unwilling or unable to
purchase his brother's share, then the property shall be sold
and the proceeds will be split equally between [David and
Derek], per stirpes."

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the court to determine that Derek was granted the right to

remain on the property for life and that David's petition for

partition be dismissed with prejudice. At no time did either

party file an action seeking instruction on whether the decedent

bequeathed a life estate, a tenancy in common, or some other

lesser right in the property.

After the matters were consolidated, David moved for

summary judgment on both the petition to partition and the

equity action. He contended that Derek triggered the in

terrorem provision of the decedent's will by filing the equity

complaint and, as a result, Derek forfeited any ownership

interest in the property. In the alternative, David claimed

that he and Derek were granted a tenancy in common and that he

is entitled to receive fifty percent of the fair market value,

to be determined by the partition.

A judge of the Probate and Family Court determined that

David and Derek were tenants in common, but also that Derek had

triggered the in terrorem clause of the decedent's will by

filing his equity complaint. As a result, the judge reasoned

that Derek's interest in the property was extinguished, and

David was therefore the sole owner of the property. The judge

granted David's motion for summary judgment on the equity claims

and, since she found that David was the sole owner of the

property, dismissed the petition to partition. Derek filed a

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motion for reconsideration, which was denied on the papers, and

he now appeals.

Discussion. 1. In terrorem clause. We review de novo the

determination that the defendant's challenge to the will

triggered the will's in terrorem clause. See Savage v.

Oliszczak, 77 Mass. App. Ct. 145, 147 (2010). An in terrorem

clause, otherwise known as a "no contest" clause, serves a

legitimate purpose -- to deter challenges to a will and

unnecessary disruptions to probate proceedings. Id. at 149.

While Massachusetts has recognized the validity and

enforceability of in terrorem clauses, "because equity does not

favor forfeitures, [in terrorem] clauses have been construed

narrowly." Matter of the Estate of McLoughlin, 104 Mass. App.

Ct. 752, 756 (2024), quoting Savage, supra at 149.

The clause at issue here states, in pertinent part, that if

any beneficiary "in any manner, directly or indirectly,

attempt[s] to contest or oppose the validity of my Last Will and

Testament, or commences, continues, or prosecutes any legal

proceedings to set this my Last Will and Testament aside," then

"such person shall forfeit his or her share" and cease to have

any interest in the estate. It further provides that if any

person "[f]iles a petition or other pleading to change the

character (community, separate, joint tenancy, partnership,

domestic partnership, real or personal, tangible or intangible)

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of property already so characterized by a Document," then that

person's rights or interests in the estate will be forfeited.2

Therefore, as pertinent here, the in terrorem clause can be

triggered in two ways: (1) if a beneficiary contests the

validity of the decedent's will; and (2) if a beneficiary

attempts to change the character of the property.

In the present case, construing the in terrorem clause

narrowly, as we must, 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." Savage, 77

Mass. App. Ct. at 149. 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.

David's filing of the petition to partition predated Derek's

equity claim and characterized the brothers' interest in the

property as a tenancy in common. We fail to see how Derek's

2 The will further provides that the terms "Document" or
"Documents" under this section collectively refers to "any
beneficiary designation of an annuity, retirement plan, IRA,
Keogh, pension or profit sharing plan, or insurance policy
signed by me, . . . or any amendments or codicils to any
Document."

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responsive claim that the brothers were beneficiaries of a life

estate somehow triggered the in terrorem clause. Moreover,

Derek's equity claim did not challenge the validity of the will

or attempt to change the character of the property. Rather, it

sought to determine whether the language of the will reflected

the decedent's intent to grant David and Derek a life estate, a

tenancy in common, or some other lesser right to use and occupy

the property. It also sought to hold David accountable for a

promise he allegedly made to his brother, i.e., that he could

live at the property for his life. See Mazzola v. Myers, 363

Mass. 625, 639 (1973) ("in seeking an interpretation of the

will, the plaintiff has not attacked or challenged the will or

any part of it," so in terrorem clause did not apply). The in

terrorem clause was not triggered.

2. The will. Having concluded that the in terrorem clause

was not triggered, we turn to the provision of the will

regarding the property. In allowing the motion for summary

judgment, the judge found the terms of the decedent's will

regarding the devise of the property to be unambiguous.

Specifically, the judge found that the third clause

unambiguously vested the parties as tenants in common and

therefore extrinsic evidence of the decedent's intent did not

need to be considered. We are not so convinced.

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We review a grant of summary judgment de novo to determine

whether, viewing the evidence in the light most favorable to the

nonmoving party, "all material facts have been established and

the moving party is entitled to judgment as a matter of law"

(citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786,

792 (2018). "The moving party bears the burden of affirmatively

demonstrating the absence of a triable issue." Milliken & Co.

v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008).

"The fundamental rule for the construction of wills is to

ascertain the intention of the [decedent] from the whole

instrument, attributing due weight to all its language,

considered in the light of the circumstances known to [her] at

the time of its execution and to give effect to that intent

unless some positive rule of law forbids" (quotation omitted).

Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 84 (2008).

"Although the interpretation of a will begins with the four

corners of the instrument . . . it does not necessarily end

there." Id. If the terms of the will are ambiguous, the court

may consider "extrinsic evidence of facts known to the

[decedent] and in light of which [the decedent] viewed the

ambiguous language" (quotation omitted). Id. at 85.

The third clause of the decedent's will states:

"I grant my sons, David . . . and Derek . . ., the right to
use and occupy my property located at 21 Sunset Strip,
Mashpee, MA. Said occupant(s) will be responsible for

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necessary maintenance, real estate taxes, utilities and
insurance expenses on the property while occupying the
property. Should neither David . . . nor Derek . . .
choose to live in the home, all such costs would be divided
equally between them. If either decides to sell the
property, then the other must be given the opportunity to
purchase his brother's share in the home at either a
mutually agreed upon price, or if a price cannot be agreed
upon, then at fair market value as determined by a
licensed, independent real estate appraiser. If the other
is unwilling or unable to purchase his brother's share,
then the property shall be sold and the proceeds will be
split equally between David . . . and Derek . . ., per
stirpes [emphasis omitted]."

We begin by recognizing that a conveyance of property to

two or more people is presumed to be a tenancy in common unless

otherwise expressed by the decedent. See G. L. c. 184, § 7.

Although the decedent granted both David and Derek an interest

in the property, 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. Hershman-Tcherepnin, 452 Mass. at 87-88. We

also note that the decedent did not use the words "bequeath" or

"devise" when referencing the property's title; rather, she used

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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. See Hesseltine v.

Partridge, 236 Mass. 77 (1920). See also Hershman-Tcherepnin,

452 Mass. at 91 ("'right to remain' language gave the wife not

an estate in the property but a right or privilege not to be

excluded from the home"). The next two sentences of this

clause, which we read in harmony with the first two sentences,

provide that if neither David nor Derek chooses to live in the

home, then the costs will be split equally, and if one of them

decides to sell, the other has the right to purchase his

brother's share. Although David argues that the grant of a

power to sell demonstrates the decedent's intent to convey fee

simple interests, it is unclear from these two sentences whether

the power to sell can be exercised at any time, or only if

neither brother chooses to live in the home. Again, this

language is ambiguous as to the type of interest created in the

property.

Because a genuine issue of material fact exists as to the

intent of the decedent about the property bequeathed, the grant

of summary judgment must be vacated.

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3. Promissory estoppel. Because we are remanding the

case, we take a moment to discuss Derek's claim for promissory

estoppel. The judge dismissed Derek's promissory estoppel claim

for several reasons. First, she found that Derek's promissory

estoppel claim was based on a theory that David's daughter

exerted undue influence on the decedent to execute a will that

was more favorable to David. The judge concluded that summary

judgment was in order because Derek did not file the equity

action within the required time period to contest the will by a

claim of undue influence. Second, the judge found that even if

the promissory estoppel claim was based upon David's alleged

promise to allow Derek to live at the property for the rest of

his life, Derek's reliance was unreasonable and in conflict with

the probate filings. Third, the judge found that the statute of

frauds barred Derek's recovery; and, fourth, that the filing of

the promissory estoppel claim also triggered the in terrorem

clause because it "indirectly attempts to oppose the validity of

the will."

As discussed above, Derek's claim of promissory estoppel

was not based on a theory of undue influence and did not trigger

the in terrorem clause. Derek's claim is based on a separate

alleged promise by David that Derek could remain at the property

for the rest of his life. On remand, if there is a

determination that Derek and David were granted a tenancy in

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common in the property, the issue of whether David later

promised Derek a life estate remains a disputed issue of fact

and one that cannot be resolved on the present record.

Conclusion. Because the will's in terrorem clause was not

triggered and the language of clause three in the will was

ambiguous, we vacate (1) the orders, entered December 24, 2024,

denying Derek's motions for reconsideration; and (2) the

judgment and decree of dismissal entered December 4, 2024. The

case is remanded for further proceedings consistent with this

memorandum and order.3

So ordered.

By the Court (Desmond, Shin &
Walsh, JJ.4),

Clerk

Entered: December 18, 2025.

3 We deny both parties' requests for awards of their
respective appellate attorney's fees; costs shall be taxed
pursuant to Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655
(2019).
4 The panelists are listed in order of seniority.

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