“No Contest” Clauses in Wills: Why They Don’t Work in British Columbia
We get it — estate planning and wills are not always easy to get started on. After finally putting your wishes into writing, it’s understandable that you might want to prevent others from challenging your will and the gifts therein. After all, it’s all yours to give away, so you should be able to decide exactly who gets what, right? Well, not necessarily.
Some will-makers attempt to include “no contest” clauses (also known as “in terrorem” clauses) in their wills. These provisions generally state that a beneficiary who challenges the will shall forfeit any gift they would otherwise receive. The intent is to discourage litigation by creating a “take it or leave it” scenario — basically, accept what you’re given or get nothing at all.
While this may seem like a creative deterrent, “no contest” clauses are unenforceable in British Columbia. Worse, they may have the opposite effect, increasing the risk of conflict and costly (and lengthy) litigation after your passing.
The Wills, Estates and Succession Act
Under the Wills, Estates and Succession Act [SBC 2009] c 13 (WESA), the Court of British Columbia has broad authority to vary (that is, alter) a will if it does not make adequate, just, and equitable provision for a will-maker’s spouse or children.
A “no contest” clause would effectively attempt to contract out of this statutory right, preventing eligible family members from challenging your will on potentially legitimate grounds. Likewise, it could also deter beneficiaries from making claims based on lack of testamentary capacity, undue influence, and even fraud — which are often fundamental concerns with respect to estate litigation.
The Courts of British Columbia have made it clear that there’s a public policy problem if a person’s right to challenge a will could simply be threatened away.
More Harm Than Good
“No contest” clauses can do more harm than good. Beyond the ineffectiveness of a “no contest” clause, they can also fuel the very disputes they’re intended to prevent. A loved one’s passing is already a very emotional and difficult time, and “no contest” clauses may do nothing but provoke resentment and embolden those who feel wronged to litigate. The realistic result is often a significant delay in the distribution of your estate, steep legal costs, and deepened family rifts.
A Better Approach
It should not come as a surprise that “no contest” clauses are ill-advised. Whether you leave someone out of your will entirely or provide them a modest gift, you should clearly and rationally explain your reasoning for disinheritance in your will or a supporting memorandum. Alternatively, there are also more effective and legally binding methods that require more detailed discussion and planning.
If you are concerned about potential challenges to your will, thoughtful estate planning and legal advice are far more effective tools at your disposal. If you need any help preparing your will or planning your estate, please feel free to contact our dedicated team at BTM Lawyers LLP, who will do their best to protect your legacy and passing intentions.