Imagine you are a parent. You have three adult children. You have money and some property. But your relationship with each child is different. One child has been close to you for decades and could use the financial help. Another moved away years ago and is getting by, but not comfortably. The third is quite wealthy and does not need your support.
When you write your will, you decide to leave unequal gifts. The first child gets the house. The second child gets some cash. The third child gets very little. You have good reasons. But you know your family. You know there will be hurt feelings. And you worry that after you are gone, one of your children will hire a lawyer and try to overturn your will, claiming you were not in your right mind, or that someone took advantage of you.
So you include a clause in your will. It says something like this: if any of my children challenges this will in court and loses, that child is disinherited entirely. They get nothing. All their share goes to their siblings or to charity. That is a no-contest clause.
What Is a No-Contest Clause?
A no-contest clause (sometimes called an “in terrorem” clause, which is Latin for “in fear”) is a provision in a will that penalises a beneficiary for challenging the will. Typically, it states that if a beneficiary disputes the will and loses, they forfeit whatever they were entitled to receive.
The idea is straightforward: raise the stakes high enough that beneficiaries think twice before taking the estate to court.
Why No-Contest Clauses Are Used
No-contest clauses exist for a reason. They are used in situations where the testator has made choices that may be surprising or upsetting to family members.
Unequal gifts to children. Some parents intentionally leave one child less because that child is wealthier, or because they received substantial gifts during the testator’s lifetime.
Blended families. When a parent remarries and has children from multiple relationships, the family dynamics are complex. A no-contest clause can prevent endless fighting among step-siblings.
Disinheritance. Some people cut one or more children entirely out of their will. The reasons are personal. But the gesture is powerful. A no-contest clause says: I made this choice deliberately, and if you challenge it, you will lose everything.
Late-life changes. Sometimes a testator makes significant changes to their will shortly before death. This can trigger suspicion. A no-contest clause makes clear that the changes were intentional.
A Hypothetical Example
Imagine a testator, Sandra, who has two adult children, Michael and Theresa.
Over time Theresa becomes antagonistic toward her mother Sandra. Indeed, arguments break out over how Sandra is going to leave her property. Theresa demands a greater share than her brother because of the work she has done for Sandra. Sandra refuses and tells Theresa so.
Sandra is saddened with Theresa’s attitude. She consults a lawyer, who helps her draft a new will. In that will, Sandra includes a no-contest clause. The clause states that if any beneficiary challenges her will, that beneficiary forfeits their share, and it passes instead to a local charity.
Sandra’s goal is clear: she wants to protect her estate from being challenged by Theresa. But will her clause actually hold up in court?
The Law in Ontario: The In Terrorem Doctrine
Ontario courts have long recognised that testators (the people who make wills) generally have the freedom to include conditions on their gifts, including no-contest clauses. But that freedom is not unlimited.
The key legal principle is the “in terrorem doctrine.” Under this doctrine, a no-contest clause will be struck down as void if it amounts to nothing more than an empty threat.
A no-contest clause is considered an “idle threat” if it does not include what lawyers call a “gift over.” A gift over is a provision that specifies where the forfeited inheritance goes.
In the Budai v. Milton case, the testator’s will included a clause stating that if the beneficiary challenged the will, she would “be removed from the Will and not inherit anything.” The Ontario Superior Court struck this clause down because it lacked a gift over. There was no substitute beneficiary named. The threat was therefore idle and unenforceable.
Compare that with a well-drafted clause that says: “If any beneficiary challenges this will, their share is forfeited and passes to the residue of the estate, to be distributed as if that beneficiary had predeceased me.” This version includes a gift over (the forfeited share goes somewhere specific), making the threat real rather than idle.
In our hypothetical, Sandra’s clause directs the forfeited share to a local charity. That is a proper gift over. Her clause stands a much better chance of being upheld.
What Triggers the Clause
Clear triggers include filing a lawsuit challenging the validity of the will, alleging lack of testamentary capacity, or alleging undue influence. If you do any of those things and lose, the clause applies. You lose your inheritance.
But there is a grey area. Filing a Notice of Objection with the Probate Court (which does not require you to hire a lawyer or file formal litigation) is somewhere in between. Some argue this triggers the clause. Others argue it does not. Ontario law on this point is not settled.
What a No-Contest Clause Cannot Do
Even a well-drafted no-contest clause has limits.
It cannot prevent a court from exercising its jurisdiction. If a beneficiary brings an application for the interpretation or administration of the will, that is not the same as challenging the will, and a no-contest clause should not penalise it.
It cannot override a dependant’s right to support. Under Ontario’s Succession Law Reform Act, dependants of the deceased can apply to the court for support if the will does not adequately provide for them. A no-contest clause cannot strip away this statutory right.
It also cannot be a blanket prohibition on all litigation. A clause that says “no one may bring any legal proceeding of any kind relating to this estate” is likely to be struck down as contrary to public policy.
Should You Include One?
A no-contest clause is not for every will. It is most useful in situations where you anticipate a challenge. That might be because you are treating beneficiaries unequally, because there is a history of family conflict, or because you are concerned about undue influence over a family member.
But a no-contest clause is not a substitute for good planning. Open communication with your family about your wishes, a capacity assessment if there is any question about your mental fitness, and a clearly drafted will prepared by an experienced lawyer are all more effective at preventing disputes than a no-contest clause alone.
As one commentator has noted, including a no-contest clause can sometimes signal that the testator knew the will was unfair and wanted to prevent anyone from doing anything about it. That inference can work against the estate in court.
The best approach is to use a no-contest clause as one tool among several, not as a substitute for fairness and clarity.
Should You Challenge a Will with a No-Contest Clause?
If you are the person considering challenging a will that contains a no-contest clause, you need to think strategically. Do you have a strong case? Or do you have suspicions? If your case is weak, the financial risk is high. You could lose your inheritance and nothing would change.
Before you hire a lawyer to challenge a will, gather your evidence. Get medical records. Talk to people who knew the testator. Understand what you are and are not able to prove. Explore mediation. Sometimes a difficult will can be settled without a full court battle. And weigh the value of your inheritance against the risk and the cost.
How We Can Help
At Bussey Ainsworth, we help families in Peterborough and the Kawarthas plan their estates with care. If you are concerned about the potential for disputes after your death, we can help you think through your options, including whether a no-contest clause makes sense in your situation.
We also assist clients who are dealing with estates where a no-contest clause has been triggered. These situations require careful legal analysis, and the outcome often depends on the specific wording of the clause. See our Civil Litigation practice page for more on our approach to estate disputes.
For background on related topics, you may also find these resources helpful:
- Wills and Estate Planning FAQ
- Powers of Attorney FAQ
- Can a Spiteful Will Be Challenged for Lack of Capacity?
- What Happens if You Die Without a Will in Ontario?
You can reach us at 705-749-0628 or book a consultation online.
Barry W. Bussey, PhD, is the principal lawyer at Bussey Ainsworth, Barristers & Solicitors, in Peterborough, Ontario. He helps families across the Peterborough and Kawarthas region with wills, estates, powers of attorney, and estate litigation.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making decisions about your estate plan.
