We have previously blogged about the concept of “no contest” or “in terrorem” clauses being included in a Will to deter a beneficiary from commencing litigation surrounding the estate. At their most basic these clauses typically provide that in the event any beneficiary should challenge the validity of the Will and/or commence litigation surrounding the estate their interest in the estate would be voided. Most discussions surrounding these clauses typically relate to the circumstances in which the court will uphold no contest clauses, with the jurisprudence typically stating that in the event the Will provides for a “gift-over” to another individual if the clause is invoked the clause will be upheld, while if there is no alternate beneficiary named the clause will be seen as a mere “threat” that will not be enforced (see for example Bellinger v. Fayers, 50 E.T.R. (2d) 1 (BCSC)).
Presuming the no contest clause contains the gift-over such that it could theoretically be enforced it raises an interesting question; namely how far could the testator could go in limiting any litigation surrounding their estate through the use of a no contest clause? Could a testator, for example, include a clause in their Will which barred the beneficiaries from being able to compel the Estate Trustee from commencing an Application to Pass Accounts, or from bringing an Application for support as a dependant under Part V of the Succession Law Reform Act? Could the testator remove the supervisory role of the court over the administration of an estate by making any court proceeding in effect impossible without risking losing their interest in the estate?
In Re Bronson, [1958] O.R. 367 (Ont. H.C.), the court confirms that clauses in Wills which attempt to exclude the supervisory role of the court are void for offending public policy. In coming to such a conclusion the court states:
“In my opinion it is not competent for a testator to confer certain legal rights by giving legacies and at the same time to say that the question whether that legal right is or is not to be enjoyed is not to be determined by the ordinary tribunal – in other words, it is not competent for him to deprive the person to whom that legal right is given of one of the incidents of that legal right…
… it is contrary to public policy to attempt to deprive persons of their right of resorting to the ordinary tribunals for the purpose of establishing their legal rights.” [emphasis added]
The court’s reasoning in Re Bronson was echoed in Mawhinney v Scobie, 2019 ABCA 76, wherein the Alberta Court of Appeal states:
“So, as a matter of public policy in Canada, a no contest clause is not allowed to oust statutory benefits (such as maintenance and support under dependants’ relief legislation) or deprive the court of its jurisdiction to deal with requests for assistance in interpreting the will, which do not impugn the will.” [emphasis added]
From cases like Re Bronson and Mawhinney v. Scobie we can conclude that a testator’s ability to bar litigation surrounding their estate through “no contest” clauses is not absolute, as it will be against public policy to completely exclude the supervisory role of the court from the administration of an estate or to attempt to bar statutory rights such as pursuing support as a dependant.
Thank you for reading.