- A no-contest clause is a will term that threatens to cancel a gift if a beneficiary challenges the will, and whether one is enforced depends on its wording and the type of challenge.
- Different challenges have different rules, such as the 180-day limit for wills variation claims, which only a spouse or child can bring.
- Because a wrong move could cost you a gift, get advice on the specific clause before you file anything.
Some wills say that a beneficiary who challenges the will loses what they were left. If you have been warned about a clause like this, it is natural to worry that speaking up could cost you your gift.
This article explains what these clauses are and what affects the risk. It does not promise that any clause will or will not be enforced. That depends on the exact words, the type of challenge and the facts, and it is worth confirming with a lawyer before you act.
This article covers the law of British Columbia.
What a no-contest clause is
A no-contest clause, sometimes called an in terrorem clause, is a term in a will that says a beneficiary forfeits their gift if they dispute the will. The idea is to discourage family conflict and litigation. How far a clause reaches turns on how it is worded, such as whether it covers any court application or only certain challenges.
Why the type of challenge matters
People use the word challenge for very different steps. Asking whether a clause applies to you begins with asking which step you are considering.
| Type of step | Who may take it | Key point |
|---|---|---|
| Wills variation claim | Spouse or child of the will-maker | Asks the court to make adequate provision for support |
| Validity challenge | Depends on your interest in the estate | Grounds include capacity, signing formalities and undue influence |
| Notice of dispute | A person entitled to notice, or claiming under another will | Pauses the grant while the issue is sorted out |
A will can also be challenged on more than one ground at the same time. A clause may affect these steps differently, and the law on that is not something to guess at from the clause's wording alone.
Related rules that may affect your decision
- If you are a spouse or child, the court may order adequate, just and equitable provision out of the estate where a will does not make adequate provision for support.
- A variation claim must be started within 180 days from the date the grant is issued in British Columbia.
- The court may refuse a variation order to a person whose character or conduct disentitles them to relief.
- Costs of a proceeding must be awarded to the successful party unless the court orders otherwise, and the court may make a costs order against a party who acts improperly or unnecessarily.
These rules are separate from the clause itself. They show that your risk includes deadlines and costs, not only the gift named in the clause.
Questions to ask before you challenge
- What exactly does the clause say, and what does it say you lose?
- How large is the gift compared with what you might gain if you succeed?
- Is there a real basis for your ground, supported by evidence?
- Are you a spouse or child with a variation claim, or someone relying on a validity ground?
- Which deadlines are running, and has a grant already been issued?
If a gift is small, the clause may matter little. If the gift is large and the evidence for your challenge is thin, the risk looks very different.
What to do next
Do not ignore the clause, and do not let it stop you from getting advice. Collect the will, any earlier wills, and any grant documents, then have a lawyer read the clause in the context of the whole estate.
You can check whether a probate file or dispute already exists by searching Court Services Online for probate and caveat or dispute cases using the deceased's name, which needs all or part of the last name. Speak to a lawyer before sending any letter to the executor, because early steps can shape your position.
Frequently asked questions
Will I automatically lose my gift if I challenge the will?
Not automatically. Whether a clause is enforced depends on its wording, the type of challenge and the facts, so have a lawyer review it before you decide.
Does a no-contest clause stop a spouse or child from asking for more?
Section 60 lets the court make adequate provision for a spouse or child where a will does not. How a clause interacts with that claim depends on the facts, so confirm it with a lawyer before relying on either view.
Is there a deadline to decide?
A wills variation claim must be started within 180 days from the date the grant is issued in British Columbia. The executor must be served within 30 days after that period ends, unless the court extends the time for service.
Can I pause probate while I decide?
A notice of dispute filed before the grant issues stops the registrar from issuing it while the notice is in effect. It generally lasts one year unless renewed or ended earlier.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Supreme Court Civil Rules, BC Reg 168/2009, Rule 25-10(1) (BC Laws) — bclaws.gov.bc.ca
- CSO Help – Search by Deceased Name, Government of BC — justice.gov.bc.ca
- Supreme Court Civil Rules, Rule 14-1 (BC Laws) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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