Earlier this year, we posed a simple question on our blog – Can a Beneficiary Be Disinherited Under a No-Contest Will Clause for Applying to Remove the Estate’s Executor? In light of the Newfoundland and Labrador Supreme Court’s decision in Franklin Estate (Re), 2026 NLSC 7, the initial answer to this question was yes – the court held that a beneficiary, in unsuccessfully applying to remove her sister as executor of their father’s estate, unwittingly forfeited her inheritance due to the operation of a no-contest clause in his will.
When this question was put to the Newfoundland and Labrador Court of Appeal in Franklin Estate (Re), 2026 NLCA 30, however, the court took a different approach. While the Court of Appeal agreed that the beneficiary’s application triggered the no-contest clause, this finding on its own was insufficient to result in her disinheritance – further analysis was necessary to properly determine whether the no-contest clause was actually enforceable.
The Removal Application
As noted in Suzana’s previous blog post, the testator in this case left his estate to his three children and also appointed Nina, one of his daughters, to serve as executrix of the estate. His will also contained a broadly worded no-contest clause which indicated that any beneficiary who commenced litigation in connection with any of the provisions of the will, other than for judicial interpretation or for direction during administration, would forfeit all benefits left to them.
Gemma, another of the testator’s daughters, subsequently applied to remove Nina as executrix, alleging that she had failed to properly administer the estate and account to the beneficiaries. In response, Nina applied to enforce the no-contest clause. Once an Endorsement was filed, dismissing Gemma’s removal application, the judge hearing the no-contest application determined that the removal application constituted litigation in connection with a provision of the will, thereby violating the no-contest clause. As a result, Gemma was disentitled to her inheritance under the will, which instead fell into the residue of the estate.
Did the Removal Application Trigger the No-Contest Clause?
On appeal, the Court of Appeal agreed that Gemma’s removal application triggered the no-contest clause.
Starting with basic governing principles, the Court of Appeal recognized that testators may use no-contest clauses to discourage estate litigation so long as judicial oversight is preserved by permitting access to the court for directions or interpretation of the testator’s will. The will must also impose consequences for failing to comply with a no-contest clause.
Recognizing that Gemma’s removal application did not seek direction regarding the administration of the testator’s estate, but rather, challenged her father’s express decision to appoint Nina as executrix, the Court of Appeal held that the application fell within the scope of the no-contest clause, thereby triggering it.
Once Triggered, Was the No-Contest Clause Enforceable?
The Court of Appeal went on to articulate the test to be applied once a no-contest clause has been triggered, highlighting that “[t]he common law has long recognized that no-contest clauses are enforceable by the court to disinherit a beneficiary … where the court finds the proceedings brought by the beneficiary to be frivolous and vexatious.” In reaching this conclusion, the court relied on older English authorities addressing the enforcement of no-contest clauses, including Adams v Adams, [1892] 1 Ch 369 and Re Williams, [1912] 1 Ch 399.
In adopting a test that avoids frivolous and vexatious estate litigation, the Court of Appeal emphasized the need to balance the testator’s intention to discourage litigation against the court’s supervisory role in estate administration. If beneficiaries are automatically disinherited whenever an application to remove an executor falls within the wording of a no-contest clause, the Court of Appeal observed that no-contest clauses could effectively prohibit beneficiaries from seeking an executor’s removal, regardless of the circumstances.
Accordingly, the Court of Appeal endorsed the frivolous and vexatious test to ensure that beneficiaries are not prohibited from “bringing legitimate proceedings to vindicate their right to inheritance.” Under this test, a no-contest clause is not enforceable unless there is evidence demonstrating not only that the beneficiary’s proceeding was unsuccessful, but that it also amounted to a frivolous or vexatious proceeding. The Court of Appeal further noted that “frivolous” proceedings have no arguable merit, and that vexatious proceedings involve the “illegitimate use of court resources” or are intended “to harass, threaten, or embarrass a party.”
Since the judge who originally heard the application erred by failing to apply the requisite test and did not consider whether Gemma’s removal application was frivolous or vexatious, the Court of Appeal remitted the matter to the Newfoundland and Labrador Supreme Court for a new hearing.
Takeaways
The Court of Appeal’s decision in Franklin Estate is useful in affirming that a broadly drafted no-contest clause may be triggered by estate litigation other than a will challenge, including an application to remove an executor. In order to enforce a no-contest clause, at least in Newfoundland and Labrador, it is now clear that the proceeding which triggered the clause must also be frivolous or vexatious.
It will be interesting to see whether this test is adopted by the courts in Ontario in the future. While there appears to be no dispute that no-contest clauses should not be enforceable if a litigant brings a successful application in the course of estate administration, as noted in Suzana’s blog post about Testing the Limits of No Contest Clauses, there does not appear to be any Ontario authority holding that a no-contest clause in a will may only be enforced if the proceeding which triggered the clause is both unsuccessful and frivolous or vexatious.
Thanks for reading,
Ian.