Introduction

No-contest clauses, or “in terrorem” clauses, are provisions in wills that threaten a beneficiary with forfeiture of their inheritance if they attempt to challenge the will. These clauses are intended to preserve testamentary intent and discourage litigation, but their enforcement raises complex legal issues, especially when legitimate concerns exist. The Alberta Court of Appeal’s decision in Mawhinney
v. Scobie, 2019 ABCA 76, is a leading case on the topic, and its relevance to Ontario practice warrants serious attention.

The Mawhinney Decision

In Mawhinney v. Scobie, the testator’s will contained the following no-contest clause:

“If any beneficiary of this my Will challenges the validity of this my Will or any Codicil hereto or commences
litigation in connection with any provision of my Will or any Codicil hereto, other than for:

(a) Any necessary judicial interpretation or for the assistance of the court in the course of administration of my estate; or

(b) Seeking to enforce or obtain any rights or benefits conferred by the laws of the Province of Alberta;

then, such beneficiary shall absolutely forfeit and lose all entitlement to benefits or to any gift to him or her hereunder.”

Mawhinney, a beneficiary, applied for advice and direction under Alberta’s Rule 75(1)(a) to determine whether requiring the executor to prove the will in solemn form would trigger the no-contest clause. The Alberta Court of Appeal found that it would. The majority held:

“While the Surrogate Rules may form part of the laws of Alberta, the rules themselves do not confer any right or benefit on the applicant, save for a procedural right to challenge the will. The very essence of an application raising suspicious circumstances is to challenge the validity of the will.” (Mawhinney v. Scobie, 2019 ABCA 76, at para. 24)

Justice O’Ferrall dissented, taking the view that seeking formal proof of the will fell within the exception in the clause for rights conferred by Alberta law. Nonetheless, the majority decision now stands as a cautionary precedent.

Ontario’s Framework: Is Mawhinney Binding or Persuasive?

Mawhinney is not binding in Ontario, but it is certainly persuasive, particularly in its analysis of what it means to “commence litigation” in the context of a no-contest clause. Ontario courts have not yet ruled squarely on whether the filing of a Notice of Objection constitutes such a triggering act.

In Ontario, the process for opposing probate begins with a Notice of Objection under Rule 75.03. This filing halts the issuance of the Certificate of Appointment and preserves the objector’s ability to bring a more formal challenge, such as a will challenge or a request for formal proof. The process differs from Alberta’s, where an application under Rule 75(1)(a) formally invokes the court’s jurisdiction for contested proof. Whether that procedural distinction creates a meaningful legal difference is a central question.

Does a Notice of Objection Commence Litigation?

While Ontario’s Notice of Objection may appear, procedurally, to be a preliminary filing that halts the issuance of a Certificate of Appointment, its substantive impact should not be underestimated. A Notice of Objection can include serious allegations — such as lack of testamentary capacity, undue influence, or breach of fiduciary duty — and often signals an intention to oppose the will’s validity or challenge the actions of an estate trustee. While the Notice of Objection itself may not require detailed allegations, it often reflects a serious intent to challenge testamentary validity or fiduciary conduct — and may be accompanied by supporting grounds that raise adversarial issues.

The issue remains unsettled in Ontario law as to whether the filing of such a Notice constitutes “commencing litigation” within the meaning of a no-contest clause. Unlike Alberta’s formal application process in Mawhinney v. Scobie, Ontario’s mechanism is triggered unilaterally by a party filing with the court registry, without judicial involvement or an originating process being served — making its legal characterization more ambiguous. In the absence of binding Ontario precedent on this precise question, counsel should proceed with caution. Advising a beneficiary to file a Notice of Objection where a no-contest clause is in play could inadvertently place the beneficiary at risk of forfeiture. Until the courts offer definitive guidance, the safest approach is to treat any
formal opposition to probate — even at the objection stage — as potentially triggering under a strictly interpreted forfeiture clause.

A Broader Caution From Ontario Courts

Ontario courts have in other contexts emphasized that procedural acts can carry significant legal consequences. For instance, in Armitage v. Salvation Army, 2016 ONCA 971, the Court of Appeal considered whether objections to accounts filed in estate proceedings constituted “claims” under the Limitations Act. While it ultimately concluded that such objections did not amount to the commencement of a civil claim, the court acknowledged the seriousness of procedural filings and their potential downstream impact. This reinforces the view that any action potentially characterized as “litigation” should be undertaken only with careful review of the applicable no-contest language.

The Role of Mediation

Given the risk that a no-contest clause could be triggered by a procedural filing, mediation offers a safer alternative. In a confidential, non-adversarial setting, concerns about undue influence, testamentary capacity, or executor conduct can be addressed constructively. At Patey Mediations, we can help families navigate these disputes without immediately resorting to filings that could jeopardize entitlements. When handled early, mediation can lead to resolutions that avoid the cost, delay, and risk of forfeiture.

Conclusion

The Mawhinney decision underscores the risks associated with triggering no-contest clauses, even when litigation is pursued in good faith. In Ontario, the uncertainty surrounding the effect of filing a Notice of Objection should give beneficiaries and their counsel serious pause. Until an authoritative Ontario decision clarifies the issue, practitioners must weigh the risks carefully. When in doubt, the mediation table may be the safest place to start.

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. For personalized legal guidance, please consult a qualified lawyer.