A Will-maker may include a no-contest clause to discourage beneficiaries from challenging a wWll, but such clauses are only enforceable in limited circumstances under Canadian law.
A valid clause generally requires a gift-over provision, meaning the gift is redirected if the beneficiary challenges the Will. Without this, the clause is considered an unenforceable “in terrorem threat” (an empty warning with no real legal effect).
Even with a gift-over, a no-contest clause will be void if it violates public policy. Courts will not enforce clauses that penalize beneficiaries for exercising statutory rights, such as claims under:
- Ontario’s Succession Law Reform Act (dependants’ relief), or
- British Columbia’s Wills, Estates and Succession Act (wills variation).
These statutory rights override any attempt to disinherit a beneficiary for bringing such claims, even if the restriction is indirect or only “lurks within” the wording.
As a result, no-contest clauses are mainly effective only against common law Will challenges, such as
- allegations of lack of capacity,
- undue influence, or
- lack of knowledge and approval.
In those cases, a beneficiary risks losing their gift if they initiate a challenge.
Case law such as Re Franklin Estate (2026) shows that even actions like attempting to remove an Executor can trigger a forfeiture if the clause is broadly drafted. Courts will carefully interpret the wording, including exceptions, to determine whether the conduct falls within the clause.
Other key principles include:
- Executors must remain neutral and cannot be turned into “defenders” of the Will.
- Similar principles may apply to trust deeds, where forfeiture-on-challenge clauses may also be struck if they conflict with public policy.
Considerations
No-contest clauses are legally fragile and must be carefully drafted. They are enforceable only in narrow circumstances and will be invalid if they interfere with statutory rights or are overly broad in scope.
Bottom of FormBrian Madigan LL.B., Broker
www.OntarioRealEstateSource.com