When valid, no contest clauses can be a powerful tool for discouraging estate litigation. Typically, these clauses threaten to disinherit beneficiaries who challenge the validity of the testator’s final will. However, as noted in my most recent blog post, a broadly worded no contest clause could also be triggered by other kinds of estate litigation. For example, an application by a beneficiary to remove the executor appointed by the testator’s will could engage a no contest clause, as illustrated by the recent decision of the Newfoundland and Labrador Supreme Court in Franklin Estate (Re), 2026 NLSC 7.
When the court released its decision in Franklin regarding the effect of the no contest clause, the application seeking the executor’s removal had not yet been decided. Earlier this month, however, the application to remove the executor was finally dismissed: see Franklin v Franklin, 2026 NLSC 19. Had the application succeeded, it would have raised an interesting question though – would the no contest clause still be enforceable under those circumstances?
Successful Estate Litigation and No Contest Clauses in Canada
Canadian courts have not yet had the opportunity to address whether a no contest clause will be triggered by a successful application to remove the estate’s executor. Having said that, Canadian jurisprudence has clearly established that a no contest clause will be invalid if a will is successfully challenged: see Mawhinney v Scobie, 2019 ABCA 76.
On a broader note, Feeney’s Canadian Law of Wills also states that if the condition articulated in a no contest clause is not void and a beneficiary successfully disputes the will, they “should not lose the gift as it would be contrary to public policy to penalize the legatee for bringing a successful action.” The case cited for this proposition – Harrison v. Harrison, [1904] O.J. No. 139 (HCJ) – dealt with an application for will construction in which the court confirmed that the beneficiary did not lose their gift as a consequence of asking the court to interpret the testator’s will.
Certainly, if it would be contrary to public policy to penalize a beneficiary for bringing a successful action, it could also be argued that it would be contrary to public policy to penalize a beneficiary for successfully litigating an issue pertaining to estate administration, such as bringing a successful application to remove the estate executor.
Guidance From English Authorities
While the impact of no contest clauses on successful litigation related to estate administration has not yet been addressed in Canada, Maria Elena Hoffstein and Robin Roddey’s paper, “No Contest Clauses in Wills and Trusts,” summarizes a few helpful English cases on point. It appears that, in England, no contest clauses cannot be used to disinherit a beneficiary who commences litigation related to estate administration in good faith in order to protect or enforce their legal rights with respect to their inheritance.
For example, in Adams v Adams, [1892] 1 Ch 369 (CA), the testator’s will provided that if a beneficiary “should in any way intermeddle with or interfere in, or attempt to intermeddle with or interfere in, the management of the testator’s real and personal estate,” they would forfeit certain annuities. Despite this clause, the beneficiary in Adams commenced litigation alleging that the annuities were not being paid and that the trustees were wasting the estate from which those annuities were to be paid. Even though the litigation technically triggered the no contest clause, the court recognized that a beneficiary could not jeopardize their entitlement to bring an action for the legitimate enforcement of legal rights.
On appeal, the Court of Appeal affirmed this reasoning, noting that had there been a bona fide action in defence of the plaintiff’s rights, the clause would not operate to cause forfeiture.
In another case, Re Williams, [1912] 1 Ch 399, a beneficiary brought an action alleging that the trustees had engaged in a wilful default. While the trustees ultimately submitted to judgment, they argued that costs could not be awarded against them because a clause in the will stated that the costs of any litigation related to estate administration commenced by a beneficiary should first be paid out of that beneficiary’s gift. In rejecting this argument, the court found that the provision had no impact on the beneficiary’s inheritance, as the action was brought in good faith and on probable grounds.
Beneficiaries Should Not Be Disinherited for Successful Litigation
There are two premises upon which it can be argued that a beneficiary should not be disinherited for successfully bringing a claim related to estate administration:
- First, beneficiaries must be free to invoke the assistance of the courts to enforce the rights conferred upon them by the testator’s will, notwithstanding the inclusion of a no contest clause in the will.
- Second, it would be contrary to public policy to use a broadly worded no contest clause to penalize a beneficiary for bringing a successful action.
Accordingly, if a beneficiary commences litigation to enforce their rights under a will – including an application to remove the executor – they should not be disinherited, even if the will includes a no contest clause.
I hope you enjoy the rest of your day,
Suzana.