Enforceable Or Intimidating: When Does A No-contest Clause In A Will Have Legal Effect?

A will-maker may wish to include a clause in the will that dissuades one or more of the beneficiaries from contesting the will. This is usually the case when the will-maker anticipates dissatisfaction on the part of one or more beneficiaries of the legacies they are left with in comparison with the size of the will-maker’s estate.

Despite a general emphasis in Canadian law on maintaining testamentary freedom, no-contest clauses in wills only sometimes have legal effect. This article considers the requirements of a legally enforceable no-contest clause. When a no-contest clause has legal effect, and if a beneficiary’s conduct falls within the scope of the clause, the clause will be effective in voiding the beneficiary’s gift.

The gift-over requirement

A key requirement of a legally effective no-contest clause is that it must contain a gift-over provision that directs where the gifted property will go if the beneficiary contests the will.

Without a gift-over provision, the no-contest clause will not have any legal effect. This is because it will be viewed as having been made “in terrorem”.¹ That is, it will be viewed as a mere idle threat to control the beneficiary’s behavior with no actual consequences. Where there is a gift-over provision in the no-contest clause, the clause is not an idle threat made “in terrorem” and may be enforceable. For example, the will can specify that if the condition (of not contesting the will) is not met, the gift is forfeited and forms a part of the residue of the estate. However, the question then arises whether the clause is void as being against public policy.

The public policy requirement

In Mawhinney v. Scobie, 2019 ABCA 76. The Alberta Court of Appeal summarized the state of the law on no-contestclauses at paragraph 26 as follows:

“The more recent Canadian in terrorem case law has focused on the application of the in terrorem rule to no-contest clauses. These cases indicate that the scope of this branch of the rule is effectively limited to conditions which prohibit common law proceedings. Conditions which purport to prohibit proceedings pursuant to dependents relief legislation, as well as conditions which are judged to constitute attempts to exclude the jurisdiction of the courts², will be held to be void pursuant to the principle of public policy.”

Accordingly, a no-contest clause in a will is void as being against public policy if it attempts to disentitle a beneficiary who is exercising their statutory rights to seek adequate provision from the deceased will-maker’s estate.

Every Canadian jurisdiction has its own version of the “dependents relief legislation” referred to in Mawhinney. For example, Ontario’s dependents’ relief legislation is contained in its Succession Law Reform Act³, which is partially need-based. In making a request to the court for adequate provision, the claimant would need to establish that they were a dependent of the deceased. British Columbia’s wills variation legislation is contained in its Wills, Estates and Succession Act⁴, and is relationship-based. It allows the spouse or children of the deceased to seek adequate provision out of the estate. If a no-contest clause in a will attempts to disentitle a beneficiary for making a claim pursuant to legislation of this type, the no-contest clause will not have any legal effect and will be void as being against public policy. Even if the no-contest clause does not obviously limit the beneficiary’s rights under legislation of this type, it will be void if that possibility “lurks within”.⁵ Careful and well-informed drafting is required.

As a result of the above, no-contest clauses can only be effectual in limited circumstances, being where a beneficiary challenges the will under one or more of the will challenges available under the common-law (for example, challenges asserting lack of testamentary capacity, lack of knowledge and approval or undue influence). In these circumstances, the beneficiary must decide between having a legal entitlement to the initial gift, or forfeiting that entitlement to initiate and go through the time-consuming, costly and potentially unsuccessful process of challenging the will. A successful challenge under these headings would typically render the will void.

Understanding the scope of a no-contest clause: Lessons from Re Franklin Estate

If a no-contest clause is valid, whether it applies in the circumstances depends on the scope of the clause and whether the beneficiary has breached the condition. The recent case of Re Franklin Estate, 2026 NLSC 7 demonstrates the importance of deciphering the scope of a no-contest clause prior to filing court documents in relation to the will in question.

Re Franklin is an example where one of the beneficiaries was, but likely had not expected to be, in breach of the no-contest clause. The Supreme Court of Newfoundland and Labrador found that the following clause was valid and applicable to the beneficiary’s application to have the executor of the will be removed:

“If any person who may be entitled to any benefit under my Will or the spouse of that person, commences any litigation in connection with any of the provisions of my Will, other than for the necessary judicial interpretation or for the direction of the court in the course of administration, all benefits to which that person would have been entitled shall cease and I revoke all such benefits. I direct that these benefits so revoked shall fall into and form part of the residue of my estate to be distributed as if the person had predeceased me and left no issue surviving me.”

As a result of a beneficiary filing an application to have the executor of the will removed, the executor filed an application to enforce the above provision against that beneficiary. The court considered whether the application to remove the executor fell within the scope of the no-contest clause given the exceptions expressed in the clause. It concluded that the beneficiary, in filing the application to remove the executor, forfeited her entitlement as beneficiary under the will. The court stated at paras 40 and 43 as follows:

“Gemma Franklin’s application to remove her sister as Executrix does not fall within either of these exceptions. More specifically, her application is not directed to asking this Court to assist in understanding the Will nor to clarify some ambiguity in it, just as it does not seek assistance for matters in issue.

…

Based on the foregoing, I find that Gemma Franklin’s Application to remove Nina Franklin as Executrix of John Franklin’s Will is “litigation in connection with any of the provisions of my Will” and clause 7(e) of the Will prohibits her from bringing it.” ⁶

This case goes to show the importance of treading carefully where a no-contest clause appears to be limited. The beneficiary wrongly believed that the application to remove the executor fell within the exception language contained in the no-contest clause.

No-contest clauses and executor duties

In Ketcham v. Walton, 2012 BCSC 175, the British Columbia Supreme Court commented on the intersection between no-contest clauses and executor’s duties. That case dealt with a provision in a will that specifically authorized and required the executor to take an active role in defending the will against any wills variation claim. Since wills variation claims were raised as anticipated, the executor applied to the court for advice and direction. In deciding whether the executor was required to take an active role in defending the will, even to the point of the complete depletion of the estate (as contemplated by the clause in question), the court said no. Simply put, an executor’s duty to beneficiaries is one of complete neutrality. The executor is to comply with the terms of the will or any variation to its terms made by the court. An executor is not to act in an adversarial capacity. Therefore, in appointing an executor, one is not appointing a keeper or protector of one’s estate who can wield their power to prevent a potential beneficiary from enforcing their own rights. Rather, one is appointing a person who is required to act in a neutral manner towards the specified and potential beneficiaries.

Application to trust deeds

While there is considerably less case law dealing with no-contest clauses in trust deeds, the case of Weisstock v. Weisstock, 2024 BCSC 2118, would suggest that the line of cases dealing with the validity of no-contest clauses in wills applies to clauses of that type contained in trust deeds. In this case, the Supreme Court of British Columbia considered a forfeiture clause in a family trust deed that stated, more or less, that if the beneficiary starts legal proceedings, the beneficiary also gives the trustee the discretion to divest the beneficiary of their interest in the trust. As a result of commencing proceedings, one of the beneficiaries was removed as a beneficiary of the trust. The petitioner argued that it was an in terrorem clause. Without specifically providing why, the court stated that the clause was against public policy. It could be that the court agreed that it was an in terrorem clause.

Key takeaways for estate planners and will-makers

An in terrorem clause is void and unenforceable. A no-contest clause is made in terrorem if it has no gift-over provision. Where there is a gift over, the clause may be enforceable, but that depends on what rights the no-contest clause is purporting to limit. A no-contest clause may be enforceable if it is limiting a challenge that can be made under the common law. It will be unenforceable if it purports to disentitle a beneficiary for making a claim that they are entitled to make under statute, such as a wills variation claim in British Columbia or a right to make a dependent’s relief claim in Ontario. Even if it is not immediately obvious that the no-contest clause purports to limits those rights, if that possibility merely “lurks within”, the no-contest clause is void as being against public policy. Careful drafting in the context of the will-maker’s intentions is necessary.

If you are planning your estate or advising a client on will drafting, Miller Thomson’s Private Client Services lawyers can help you navigate the requirements for a valid and effective no-contest clause.

Footnotes

^{1 In terrorem clauses are not enforceable. The in terrorem principle applies to gifts of real or personal property or a combination of those. See Kent v. McKay[1982] 6 W.W.R. 165, 139 D.L.R. (3d) 318 (B.C. S.C) at paras 11-14,and generally Schmidt Estate, Re 1949 Carswell Man 43. Bellinger v. Nuytten Estate,2003 BCSC 563. In addition to the case law cited herein, a helpful resource on the status of the law on in terrorem clauses is: Peter G. Lawson “The Rule against in Terrorem Conditions: What Is It, Where Did It Come from – Do We Really Need It.” Estates, Trusts & Pensions Journal 71.}

^{2 In Anderson Estate, Re , 2017 ABQB 422 at para 18, this was described another way; as depriving “the court of its jurisdiction to adjudicate all matters concerning a will”. The author is hard-pressed to find an example of a condition that attempts to exclude the jurisdiction of the courts which does not also fall under the category of purporting to prohibit proceedings pursuant to dependents relief, or similar, legislation.}

^{3 Succession Law Reform Act, R.S.O. 1990, c. S.26, Part V.}

^{4 Wills, Estates and Succession Act, [SBC 2009] Ch. 13, Div. 6.}

^{5 Ketcham v. Walton 2012 BCSC 175, at para 19.}

^{6 This decision is problematic for two reasons: 1) it equates the criteria of a void no-contest clause with the criteria of what makes a clause in terrorem. See para 11. In doing so it cites para 11 of Kent v. McKay [1982] 6 W.W.R. 165, 139 D.L.R. (3d) 318 (B.C. S.C), which described the criteria for a clause to be in terrorem. This is problematic because a no contest clause can be void for reasons other than being in terrorem. 2) This case states that the Will prohibited the application (at para 43). The Will did not prohibit the application, but it revoked the beneficiary’s entitlement under the Will for making the application; an important distinction made in para. 49 of Mawhinney v. Scobie, 2019 ABCA 76.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.