Does a No-Contest Clause Work in Ontario Wills?

A no-contest clause, sometimes called an in terrorem clause, is a provision in a will that is meant to discourage challenges to it. If you have just read one in a will and you have doubts about how the will was made, it is natural to freeze.

This article explains the idea in plain terms and what we can say about the risks of challenging a will in Ontario. It cannot tell you whether the clause in your will would be enforced against you. That depends on the exact wording and what you would be doing, and a lawyer should read the will first.

What a no-contest clause is meant to do

The purpose of the clause is deterrence. The person making the will wants to discourage family members from going to court, so they attach a consequence: lose your gift if you sue. It is only a threat if you were going to receive something in the first place, so it often matters most to the beneficiaries with the most to lose.

Clauses vary. Some refer to any challenge to the will. Others are narrow. Whether a particular step you are considering falls inside the clause is a question of wording, and it is exactly what a lawyer should assess before you act.

Questioning a will is part of how the system works

The law does not treat a will as valid just because it exists. The party putting a will forward carries the legal burden of proving due execution, knowledge and approval of the contents, and testamentary capacity. Where suspicious circumstances raise doubt about capacity, that party must prove capacity on a balance of probabilities.

That does not mean every challenge will succeed, and it does not answer whether a clause would apply to you. It does show that courts expect evidence, and that raising genuine questions is a recognised part of the process. Alleging undue influence over a will puts the burden on the person attacking the will.

Different steps carry different risks

Not every step in an estate matter is a full attack on a will. Asking for accounts, asking a court for directions, or filing a notice of objection are different actions, and a clause may or may not reach them depending on how it is written.

Do not assume that something is safe because it is procedural. Ask a lawyer whether the step you plan could be argued to fall within the clause.

The risk that is clearer: costs

Even without a clause, litigation has a price. Estate litigation is governed by the ordinary civil costs regime, and costs come out of the estate only where public policy considerations apply: giving effect to valid wills of competent testators, ensuring estates are properly administered, or litigation caused by the testator.

Courts may make blended orders in which the loser pays part of the other side's costs and the estate bears the balance. In one case, a daughter's application to stop distribution of her mother's estate failed at the threshold, and she was ordered to pay $8,758.19 in costs of the application and $15,000 in partial indemnity costs of the appeal. Those are examples from one case, not a typical bill.

In the Toronto Region Estates List, the traditional practice of awarding costs to all parties out of the estate has been tempered by conduct and relative success.

What to do next

Do not decide on the basis of fear or of the clause alone. Weigh the strength of the evidence, the cost risk, and what you stand to lose or gain.

• Get a complete copy of the will and read the clause's exact words.
• List what you were left and what you would receive if the will were set aside.
• Write down the specific concerns: signing, capacity, pressure or something else.
• Gather records that support those concerns.
• Hold off on sending demands or filing documents until a lawyer has reviewed the clause.
• Ask about costs risk and about whether mediation could resolve the matter, since mediation is mandatory for specified estate proceedings.

Frequently asked questions