Newfoundland Court Affirms Will's No-Contest Clause

Case remitted for NL Supreme Court to apply frivolous and vexatious test to disinherit beneficiary While agreeing with an executrix that a beneficiary’s request to remove her triggered a will’s no-contest clause, the Newfoundland and Labrador Court of Appeal remitted the matter for an application of the frivolous and vexatious test for disinheriting a beneficiary. Franklin Estate (Re), 2026 NLCA 30, revolved around the will of a testator who passed away on Aug. 6, 2019. The will named his three children, including the appellant and the respondent, as his beneficiaries. The will designated the respondent as executrix. The will’s no-contest clause provided that a beneficiary would forfeit their entitlement by bringing litigation – except for judicial interpretation or directions during estate administration – relating to any provision of the will. On Aug. 15, 2024, before the Supreme Court of Newfoundland and Labrador, the appellant applied to remove the respondent as executrix. The appellant alleged that the respondent failed to administer the estate, provide sufficient accounting, and comply with an interim accounting order. On Nov. 27, 2024, the respondent applied to enforce the no-contest clause. In the appellant’s removal application, a judge refused to remove the executrix. In the respondent’s no-contest application, another judge enforced the no-contest clause and ordered the appellant to pay the estate Column 3 costs. The applications judge determined that: The appellant challenged the applications judge’s decision in the no-contest application. Because the applications judge failed to apply the frivolous and vexatious test, the Court of Appeal of Newfoundland and Labrador set aside his decision and remitted the matter to the NL Supreme Court for a rehearing. The new hearing would determine whether the appellant’s removal application was frivolous and vexatious. If it were not frivolous and vexatious, the no-contest clause would be unenforceable based on the removal application. The appeal court did not order appeal costs. The NL Court of Appeal used the standard of correctness to review the applications judge’s application of the legal test, which involved a legal question, and his legal conclusion, which did not rely on the factual matrix. Upon applying the standard of correctness, the NL Court of Appeal affirmed the applications judge’s determination that the removal application triggered the no-contest clause. The appeal court explained that the no-contest clause sought to discourage only elective adversarial litigation, not legitimate judicial oversight. The appeal court ruled that the removal application, which challenged the testator’s express intention in his will to appoint the respondent as executrix, did not fall within the no-contest clause’s two exceptions. Given that one exception involved directions during administration, the appeal court pointed out that the appellant could have applied for directions about the executrix’s estate administration instead of requesting the executrix’s removal. “The common law has long recognized that no-contest clauses are enforceable by the court to disinherit a beneficiary in circumstances where the court finds the proceeding brought by the beneficiary to be frivolous and vexatious,” Justice Glen L.C. Noel wrote . The NL Court of Appeal saw an error in the applications judge’s enforcement of the no-contest clause without making factual findings and applying the requisite test for whether the removal application was frivolous and vexatious. The appeal court explained that enforcing the no-contest clause without such factual findings would prevent a beneficiary from applying to remove the executrix in any circumstances. The appeal court emphasized that it should strike a balance between the testator’s express intention to prohibit any litigation in connection wit