In our recent blog, An Estate Lawyer’s Guide to the Estate Litigation Galaxy, we discussed will challenges and raised that on the planning side, lawyers may consider including a no-contest clause in a Will as a deterrent to potential litigation. In today’s blog, I will be highlighting the use of no-contest clauses in Wills.
What is a No-Contest Clause?
A no-contest clause is intended to discourage a beneficiary from challenging a Will by providing that the beneficiary will forfeit some or all of their inheritance if they do so. A no-contest clause is also commonly referred to as an in terrorem clause, a Latin expression meaning “into fear” or “to instill fear.” Quite fitting to be writing a blog on this, given that Halloween is coming!
It may be tempting to include a no-contest clause where a testator is concerned that the administration of their estate will be delayed or consumed by litigation and their wishes challenged. However, there are various considerations around the enforceability of a no-contest clause.
Under the common law in terrorem doctrine, a no-contest clause may be unenforceable if three requirements are met:
- the legacy is of personal property or blended personal and real property;
- the condition is either a restraint on marriage or one which forbids the beneficiary from disputing the Will; and
- the “threat” is “idle.”
Consider the following clause from the will of Mr. Vairis Berzins who died in 2012:
“Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.”
This was the clause considered in Budai v. Milton, 2014 ONSC 5530. The Court found this clause to be void under the in terrorem doctrine.
Do you spot the issues with this clause?
No Gift-Over
The clause simply provided that Ms. Budai would not receive anything if she challenged the Will or the choice of Executrix. It did not say where her forfeited interest, or gift-over, would go.
The Court found that the clause amounted to a bare forfeiture and was therefore an “idle” threat.
Accordingly, if a no-contest clause is intended to have real consequences, the drafting should not simply say that a beneficiary “shall receive nothing.” It should clearly provide what happens to the forfeited interest.
Too Broad of a Restriction
The clause states that Ms. Budai would be disinherited if she challenged the Will or the choice of Executrix “in any way”. The Court found that the wording was sufficiently broad to encompass all types of challenges.
A properly drafted no-contest clause would not oust the Court’s jurisdiction entirely with respect to the administration of an estate, especially with respect to the enforcement or interpretation and construction of a Will.
There are also statutory rights that on public policy grounds a no-contest clause cannot override, such as dependant’s relief.
Section 58 of the Succession Law Reform Act (the “SLRA”) provides that, where a deceased has not made adequate provision for the proper support of a dependant, the court may order that adequate provision be made out of the estate.
Section 63(4) of the SLRA further provides that an order for dependant support may be made despite any agreement or waiver to the contrary.
A no-contest clause should not be drafted on the assumption that it can prevent an otherwise valid application for dependant’s relief.
Recent Authority from Newfoundland and Labrador
In a recent Newfoundland and Labrador Court of Appeal decision in Franklin Estate (Re), 2026 NLCA 30, the Court considered a no-contest clause in the context of an application to remove an executor.
Although the Court concluded that the removal application fell within the language of the clause, it held that the lower Court should not have enforced the clause without first considering whether the application was frivolous and vexatious.
The Court affirmed the principle that a beneficiary should not be disinherited for bringing proceedings in good faith and with probable cause to vindicate their rights under a Will.
The Takeaway
To reduce the risk of a no-contest clause being found unenforceable, careful consideration should be given to:
- providing an effective gift-over;
- preserving applicable statutory rights;
- distinguishing testamentary challenges from applications for the interpretation or construction of a Will, or for directions concerning the administration of the estate; and
- reviewing the language for any other public policy concerns.
The objective should not simply be to make litigation as difficult as possible. A well-drafted no-contest clause should seek to deter an unwarranted challenge while recognizing that the Courts retain ultimate authority over testamentary validity, statutory rights and the proper administration of estates.
It’s important to seek proper legal advice from an experienced estate lawyer when there are tensions with beneficiaries and to insulate your estate from potential claims to the extent possible.
For Further Reading
Dispute-Proofing Your Estate Plan – March 26, 2015
— Namratha Sankar