Take it or Leave it: No-Contest Clauses in Alberta Wills

No-contest clauses are an increasingly common estate planning tool used to discourage long, expensive family fights after someone passes away. While they cannot stop someone from challenging a will, it does make them think carefully before doing so, because if they challenge it and lose, they could lose their entire inheritance.

For testators considering including such a clause, and beneficiaries evaluating whether to challenge a will that contains one, recent case law provides helpful guidance on enforceability and scope. This article explains what no‑contest clauses are, how Alberta courts treat them, and what both will‑makers and beneficiaries should know before relying on one.

What is a No-Contest Clause

No-contest clauses (also called “in terrorem” or “poison pill” clauses) provide that a beneficiary who unsuccessfully challenges a will forfeits their entitlement, with the forfeited gift usually passing to the residue of the estate or another beneficiary.[1] For example, the Will might indicate “if any beneficiary challenges my will and loses, they will forfeit their inheritance.” While these clauses do not prevent a beneficiary from bringing a claim, they significantly raise the stakes of doing so. A beneficiary must carefully assess the strength of their case before starting litigation, recognizing that an unsuccessful challenge may result in losing their inheritance entirely.

Enforceability in Alberta

The leading Alberta case is Mawhinney v Scobie, in which the Alberta Court of Appeal confirmed that properly drafted no-contest clauses are valid and enforceable.

In Mawhinney, shortly before their death, the deceased signed a new will that reduced a beneficiary’s share and included a no-contest clause.[2] The beneficiary argued that there were suspicious circumstances regarding the deceased’s capacity and asked the court whether applying to require formal proof of the will would trigger the clause.[3] The Court of Appeal said yes, such an application would count as challenging  the will. If the beneficiary went ahead with the challenge and lost, they would lose their entitlement.[4]

Mawhinney confirms that no-contest clauses are subject to limits grounded in public policy. Three key requirements must be satisfied for a clause to be enforceable:

1. The clause cannot oust the court’s jurisdiction:[5] a clause cannot prevent beneficiaries from seeking the court’s assistance to interpret the will or supervise estate administration.
2. The clause cannot defeat statutory rights:[6] a clause cannot prevent a beneficiary from advancing claims grounded in legislation, including family maintenance and support claims or other statutory entitlements.
3. The clause must provide for a gift over:[7] To be enforceable, the clause must clearly state what happens if a beneficiary forfeits their interest. Typically, the forfeited gift passes to the residue of the estate or to a specified alternate beneficiary. Without this consequence, the clause may be treated as merely as a threat and unenforceable.

Where these requirements are satisfied, courts will generally uphold the clause as a legitimate mechanism to discourage unnecessary litigation.

Recent Judicial Consideration

The principles articulated in Mawhinney were recently applied and affirmed in Franklin Estate (Re), 2026 NLSC 7 further confirming the enforceability of properly drafted no-contest clauses.[8]

In Franklin Estate, the will included a no-contest clause that said any beneficiary who started a lawsuit related to the will, unless it was for necessary court interpretation or direction, would lose their inheritance.[9] A beneficiary applied to remove the executrix, arguing the application was related to administration and not a challenge to the will.[10]

The Court rejected this argument and relied on Mawhinney in finding an application to remove the executrix was not merely asking for help with interpretation or administration, but rather was litigation challenging the structure of the will and the testator’s chosen estate plan.[11] As a result, the no-contest clause was triggered and the beneficiary lost her inheritance.[12]

Franklin Estate reinforces the approach in Mawhinney: if a no‑contest clause is properly written, the courts will enforce it. Courts will assess the substance of the proceeding, not just what the applicant calls it, to decide whether it amounts to a challenging the will. The decision makes it clear that trying to change the testator’s chosen estate plan, including applications to remove an executor, fall outside the limited exceptions allowing judicial interpretation or administrative direction, and can result losing their inheritance under the will.

Key Takeaways

For Those Preparing A Will:

A no-contest clause may be helpful if:

• You are concerned about family conflict
• You want to discourage unnecessary litigation
• You want beneficiaries to think carefully before challenging your wishes

However, the clause must be carefully drafted so it:

• Does not interfere with the court’s role
• Does not block statutory claims
• Clearly states where a forfeited gift goes

A poorly drafted clause may be thrown out, or worse, create more conflict.

For Beneficiaries Considering Litigation:

The existence of a no-contest clause significantly alters the risk analysis. Even steps that may appear procedural, such as applications relating to validity or administration, may constitute a challenge that risks forfeiture if unsuccessful.

Careful legal advice can help ensure that a clause is structured to achieve its intended purpose, or that a proposed challenge is assessed with a clear understanding of the associated risks.

Our Estates & Trusts and Estates Litigation teams regularly advise clients on the strategic use and enforceability of no-contest clauses. Whether you are considering incorporating a no-contest clause into your estate plan or assessing the risks of challenging a will that contains one, our team can assist in protecting your interests and achieving your objectives.