Thomas Witteveen, Associate, Gowling WLG(Canada) LLP
Can a beneficiary try to remove an executor without losing their inheritance under a Will that contains a no-contest clause? The Court of Appeal of Newfoundland and Labrador (the “Court”) recently considered such issue in Franklin Estate (Re), 2026 NLCA 30, a decision that clarifies the legal test courts must apply before enforcing a no-contest clause in a Will.
The Facts
John Leslie Stephen Franklin died on August 6, 2019, leaving a Will that named his three children, being Nina, Gemma and Sophie, as beneficiaries and appointed Nina as the sole Executrix. The Will contained a broadly worded no-contest clause:
If any person who may be entitled to any benefit under my Will or the spouse of that person, commences any litigation in connection with any of the provisions of my Will, other than for the necessary judicial interpretation or for the direction of the court in the course of administration, all benefits to which that person would have been entitled shall cease and I revoke all such benefits. I direct that these benefits so revoked shall fall into and form part of the residue of my estate to be distributed as if the person had predeceased me and left no issue surviving me.
By 2024, Gemma had grown frustrated with Nina’s administration of the Estate, alleging Nina failed to administer the estate, account to beneficiaries and comply with a prior court-ordered interim accounting.
Nina responded by filing an application to enforce the no-contest clause so that Gemma would forfeit all of her benefits under the Will.
The Lower Court Decision
The lower court sided with Nina on both fronts. Gemma’s application to remove Nina was dismissed and the no-contest clause was enforced, thereby disinheriting Gemma entirely. The lower court found it “self-evident” that a removal application constituted litigation “in connection with” the Will’s provisions and concluded that Gemma’s contrary position was “insincere and unpersuasive.”
The Court of Appeal’s Analysis
The Court agreed with the lower court on one point but overturned it on another.
The no-contest clause was triggered. The Court held that an application to remove an executor is indeed “litigation in connection with” a provision of the Will. The appointment of an executor is a core testamentary provision, and a removal application challenges it directly. Importantly, the Will’s exceptions to the no-contest clause (being for applications for judicial interpretation or directions during administration) did not cover a contested removal application. Gemma could have sought court directions regarding the administration of the Estate, but instead chose to challenge Nina’s appointment outright, which engaged the no-contest clause.
But the clause should not have been enforced without further analysis. Notwithstanding that the no-contest clause was triggered, the Court held that the lower court erred by enforcing the no-contest clause without first determining whether Gemma’s removal application was frivolous and vexatious. The Court affirmed the principle that no-contest clauses cannot disinherit a beneficiary who brings proceedings in good faith and with probable cause to vindicate their rights under a Will.
The Court adopted a “frivolous and vexatious” test as the proper standard: a no-contest clause should only be enforced where the triggering litigation had no arguable merit or constituted an illegitimate use of court resources. As the Court put it, enforcing the clause without such factual findings “would prohibit a beneficiary in any circumstance from applying to remove the Executrix,” undermining the court’s supervisory role over estate administration.
The Outcome
The Court allowed the appeal. The matter was remitted for a rehearing to determine whether Gemma’s removal application was, on the evidence, frivolous and vexatious. If it was not, the no-contest clause cannot be enforced based on that application.
Key Takeaways
- No-contest clauses are enforceable, but not absolute. Courts will uphold testamentary autonomy and give effect to no-contest clauses, but they will not allow such clauses to insulate executors from legitimate accountability.
- The “frivolous and vexatious” test is the standard, at least in Newfoundland and Labrador. Before a court can enforce a no-contest clause to disinherit a beneficiary, it must make factual findings as to whether the offending litigation had arguable merit or was brought in bad faith. Merely losing an application is not enough.
- Beneficiaries should think carefully about the form of their court applications. The Court noted that Gemma could have sought directions regarding the administration, which fell within the clause’s exceptions, rather than pursuing the more aggressive step of a removal application. Accordingly, the choice of the procedure matters.
- Drafters should take note. For estate practitioners, this decision is a reminder that no-contest clauses, while powerful tools for discouraging wasteful litigation, will be read in light of the court’s inherent supervisory jurisdiction. Overly broad clauses may not achieve their intended effect if a beneficiary can demonstrate a legitimate basis for the impugned proceeding.
We will need to wait and see whether this frivolous and vexatious standard is adopted by the courts in Ontario in the future.
