.jpg)
A no-contest clause is a warning written into a will or trust. It says: challenge this plan, and you lose what the plan gives you. Lawyers call it an in terrorem clause, Latin for "in fear." The name fits. The clause works best when it never has to be used. Its purpose is deterrence, not punishment. The person making the plan is, in effect, using part of the estate to buy a quiet administration.
That tells us two things. First, a clause can't take anything from someone who was left nothing. It works only when the beneficiary has enough at stake to make a failed contest costly. Second, a modern clause has to be broader than "don't contest this will." Attacks on an estate plan rarely come labeled as a "trust contest." They show up as a reformation petition, a claim that property was really owned jointly, an elective-share filing, a creditor claim pressed after the fiduciary rejected it, or a challenge to a beneficiary designation. Sometimes they are just quiet help given to someone else who is doing the fighting. A narrow clause misses most of that.
We first wrote about no-contest clauses in 2014. Since then, courts in Ohio and Missouri have said more about how far these clauses reach and when they hold. Both states enforce them. Neither recognizes a good-faith exception. They differ in how they read the clause and in what a beneficiary may do before filing.
Ohio: Strong Enforcement, Literal Reading
No Ohio statute governs no-contest clauses. The law comes from the courts, and it rests on three settled points:
- The Clauses are Valid. The Ohio Supreme Court has upheld them since Bradford v. Bradford, 19 Ohio St. 546 (1869).
- There is No Good-Faith Exception. Many states excuse a challenger who had probable cause or acted in good faith. Ohio does not. In Modie v. Andrews, 2002-Ohio-5765, the Ninth District declined to follow the Uniform Probate Code on this point. It explained, quoting an earlier Ohio decision, that such an exception "would in fact destroy the rule itself." A beneficiary who files a contest and loses forfeits, however sincere the challenge.
- Courts Read the Clause Literally. A clause reaches only the conduct its words describe.
In In re Estate of Damschroder, 2021-Ohio-1558, the Third District held that a beneficiary who was named as a defendant in her sister's will contest, filed a response, and testified had not triggered the clause either. She never attacked the will. The court separated a challenge to validity from a request for "probate court supervision to ensure proper distribution." It also reaffirmed that defensive pleadings, such as exceptions to an inventory, are not contests. The typical clause language the court was describing is aimed at efforts to "break, change or set aside the will or any part thereof." Conduct outside those words is outside the clause.
Ohio Trusts
Ohio's trust law on this point isn't just borrowed from will cases. In In re Estate of Reck, 2023-Ohio-4206, the Second District applied a no-contest clause in a revocable trust. A beneficiary filed a declaratory-judgment complaint claiming that an amendment to the trust was the product of undue influence and lack of capacity. The court held that filing the complaint "triggered the application of the in terrorem clause in the Trust, thereby divesting her of her status as a beneficiary." It refused to create a public-policy or good-faith exception.
The lesson for drafters is plain. In Ohio, a no-contest clause is strong but literal. If the drafter wants it to reach something, the drafter has to say so.
Missouri: Statutory Structure and a Safe Harbor
Missouri enforces no-contest clauses too, and it has never recognized a good-faith or probable-cause exception. In Cox v. Fisher, 322 S.W.2d 910 (Mo. 1959), the court held that the clauses are enforced "without regard to any exception based upon the good faith and/or probable cause of the contestant."
In 2014 Missouri added something Ohio lacks: parallel statutes for trusts and wills. They do two things.
- They Create a Safe Harbor. Any interested person may ask the court, before filing, "whether a particular motion, petition, or other claim for relief . . . would trigger application of the no-contest clause or would otherwise trigger a forfeiture that is enforceable under applicable law and public policy." The court decides the question from the clause, the instrument as a whole, and the petition's verified allegations. It takes no other evidence unless needed to resolve an ambiguity. The will statute uses the same procedure. This lets a beneficiary test the waters. The court rules on whether the proposed claim would trigger the clause, so the beneficiary knows the stakes before filing.
- They List Filings a Clause Cannot Reach. Under § 456.4-420.7, a no-contest clause "is not enforceable against an interested person in, but not limited to, the following circumstances":
1. objecting to the court's jurisdiction or venue, including over "any person joined, or attempted to be joined";
2. seeking relief "concerning an accounting, report, or notice that has or should have been made by a trustee," if the person otherwise has standing;
3. seeking relief under Chapter 475 "concerning the appointment of a guardian or conservator for the settlor";
4. seeking relief under Chapter 404 (powers of attorney) "concerning the settlor";
5. disclosing information about the trust, unless the law otherwise forbids it;
6. seeking approval of a nonjudicial settlement agreement; and
7. filing the safe-harbor petition itself.
Outside that list, Missouri enforces the clause as written.
In Knopik v. Shelby Investments, LLC, 597 S.W.3d 189 (Mo. banc 2020), the trust said a beneficiary would forfeit his interest by challenging its validity, alleging breach or mismanagement, or trying to remove the trustee. The beneficiary sued for breach of trust and removal of the trustee without first seeking a safe-harbor ruling. The Missouri Supreme Court upheld the forfeiture. It held that a clause is enforced where the settlor clearly intended the conduct to forfeit the interest. Courts are not to use a "strained or overtechnical construction" to avoid that intent. The court said the beneficiary should have used the safe harbor. Because he hadn't, it declined to decide whether Missouri should adopt a good-faith or probable-cause exception. Missouri has never recognized that exception, and Knopik refused to create one on those facts.
Knopik shows the tension the safe harbor is meant to resolve. A Missouri clause that plainly reaches breach and removal claims will be enforced. A beneficiary with a real grievance has a clear path: ask first. Later courts treat that step as a real part of the process. In Keen v. Wolfe (Mo. App. S.D. 2023), for example, the court required the trial court to actually decide the safe-harbor petition before an appeal could be taken.
Wills Versus Trusts in Both States
| Feature | Ohio | Missouri |
|---|---|---|
| Source of law | Case law since 1869 | Statutes enacted in 2014, plus case law |
| Clause enforceable in a trust | Yes (Reck) | Yes (Knopik) |
| Good-faith or probable-cause exception | None (Modie, Reck) | Not adopted; left open in Knopik |
| How courts read the clause | Literally, limited to its terms | By the settlor's clear intent, without strained construction |
| Ruling before filing | No statutory procedure | Yes, for trusts (§ 456.4-420) and wills (§ 474.395) |
| Filings the clause cannot reach | No statutory list; case law excludes defensive pleadings | Seven, listed in § 456.4-420.7 |
| Deadline to contest a will | Three months after the certificate of notice of probate is filed | Six months after probate or first publication of notice |
| Deadline to contest a revocable trust | Two years after death, or six months after receiving the trust, whichever is earlier | Two years after death, or six months after notice, whichever is earlier, with a will-related variation |
| Lifetime validation | Available for wills and trusts | No Ohio-style procedure |
The clause itself works the same way in a will and in a trust. As we noted in Resilient Estate Planning, many people assume a trust is safer because it has a no-contest clause. Wills have them too. The real differences lie elsewhere:
- Reach. A will's clause usually protects only the will. A trust's clause can be drafted to protect the whole plan.
- Duration. A will contest usually comes early, in probate. Trust disputes can surface years later, during administration.
- Arbitration. Ohio enforces arbitration clauses in trusts, but not in testamentary trusts and not for challenges to a trust's validity.
- Use. A funded trust is already operating. A will is not. The same sentence in both documents won't deter equally if the will is the only instrument and the accounts have already paid out on beneficiary forms.
Ohio statutes have no counterpart to Missouri's safe harbor. Its closest tool works differently. Under Chapter 5817, a person can have a will or trust declared valid during life. Capacity and undue influence are then tested while the client can still speak for themselves. A validated instrument with a no-contest clause is harder to undo than either tool alone.
Our Ohio trusts borrow Missouri's idea. A beneficiary may ask the Trustee in writing whether a specific proposed claim would be a contest. Asking is not itself a contest, and any dispute over the answer goes to arbitration.
Why We Draft Broadly: A Look at a Modern Clause
- It names the real grounds: "Contest" includes any claim that the grantor lacked capacity or signed because of undue influence, fraud, mistake, or duress. Because Ohio reads these clauses literally, naming the grounds matters.
- It protects every provision: The clause applies to any effort to void, nullify, or set aside a document "or any of its provisions." That language decided Gowdy v. Cook, which we discussed in 2020. A Wyoming beneficiary asked the court to reform a single trustee-qualification requirement. The court held that the request violated a clause reaching "any" provision of the trust. Reformation was not a safe, friendly request. It was a contest under the clause's plain words.
- It protects the whole plan, not one document: "Document" includes the trust, any sub-trusts, the will, beneficiary designations on annuities, IRAs, retirement plans, and insurance, buy-sell agreements, family partnership and LLC agreements, deeds, and other transfers. Without this, a disappointed heir can go around the trust by attacking the deed that funded it or the beneficiary form that feeds it. This is the "enhanced" clause we described in 2014.
- It reaches the ways a validity fight gets disguised: The clause also covers:
- pursuing a creditor claim the fiduciary rejected;
- trying to recharacterize property the documents already characterized;
- claiming joint-tenancy assets other than as a surviving joint tenant;
- filing a homestead, family-allowance, or elective-share petition in a related probate.
Some of these triggers come from California practice. They keep the clause useful for clients who move or who own property with a community-property history.
- It reaches helpers, with a safety valve: The clause applies to a beneficiary who conspires with or assists a contestant, "even if acting in a fiduciary capacity." That addresses a real problem: an executor who quietly supports a relative's attack. But the clause reaches that participation only "in a manner adverse to the trust estate." That limit matters. An honest co-fiduciary who files a defensive pleading, or a beneficiary who answers a complaint and testifies truthfully, should not forfeit. Damschroder is the model.
- It closes the back door through the contestant's children: A forfeiting beneficiary is treated as having died before the grantor without surviving issue. Without that phrase, the gift could pass to the contestant's children, and the contestant would lose little.
- It covers arbitration but invites settlement: A challenge brought in arbitration counts as a contest. Positions taken only in mediation or settlement talks, before any suit is filed, do not. We want families to talk. Talk is not the problem. A filed fight is.
- It doesn't let the plan be worn down by expense: The trustee may defend any contest at the trust's expense.
- It protects tax planning: The clause won't forfeit a gift that qualifies for the federal estate tax marital or charitable deduction. A forfeiture there could cost the estate the deduction.
- It records the grantor's considered intent: Our trusts state that the grantor (or grantors) considered everyone, named and unnamed. A separate section limits anyone a court finds entitled to something outside the plan, such as an unknown or lost heir, to one dollar. Together they make it hard to argue that someone was simply forgotten.
- It means filing is enough: A contest occurs when it is filed, even if later withdrawn or settled. That stops file-and-settle tactics.
- It means proxies count: Actions by a beneficiary's agent, guardian, or controlled entity are treated as the beneficiary's own.
- It limits consequence: If an amendment is held invalid, the terms just before it govern.
The clause does not stand alone. Several other trust provisions work with the No Contest Clause:
- Arbitration: Disputes over interpretation and administration go to a private arbitrator under Ohio's trust arbitration statute. A beneficiary who challenges the trust through arbitration forfeits in the same way.
- The Peace and Tranquility Clause: This is a term coined by the late Judge Spicer, and we keep his name for it. The no-contest clause deals with validity and coordinated attacks. Peace and Tranquility deals with administration. The trustee, an arbitrator, or the probate court may charge a beneficiary's share for delay or expense caused by bad faith, vexatious conduct, or even unwarranted obstinance. It is aimed at the beneficiary who won't contest the plan but will make it expensive to carry out.
- Technical Breach without Harm: A suit that proves only a technical breach of fiduciary duty, with no financial loss, is treated as a contest. The aim is to stop litigation that hunts for a process defect as a way to reopen the plan.
- Protecting the Incapacity Plan: This provision sits in Article I with the grantor's lifetime rights and privileges and the incapacity terms; it is not found within the No Contest clause. It lets the trustee withhold or postpone distributions to a beneficiary who undermines the grantor's incapacity plan. That includes, for example, petitioning for guardianship on medical opinions that conflict with those of the physicians the grantor named.
Why go this far? In Tharrett v. Everett, which we discussed last year, a beneficiary challenged his sister's work as trustee for years. He then took his distribution and appealed anyway. The Kansas Supreme Court held that accepting the distribution ended his right to appeal. Every round of that litigation was paid for by the family. Families don't litigate in neat captions. They litigate in pieces: a deed, a beneficiary form, an elective share, a reformation request, a child who "just wants the court to look at it." A broad clause, a Peace and Tranquility provision, and arbitration are built to keep those pieces from becoming a rewrite of the plan.
The Limits
Honest drafting has to admit what a no-contest clause can't do:
- It can't reach someone who was left nothing: There is nothing to forfeit.
- It doesn't stop the government: Adult Protective Services and prosecutors are not beneficiaries.
- It doesn't replace funding: Beneficiary designations, TOD and POD forms, and deeds that never made it into the trust remain the usual leak. That is why our trust defines "Document" so broadly. But if the money has already passed under a form the clause never touched, forfeiting a trust share is small consolation.
- It is only as strong as the document it sits in: Bates v. Bates, which we covered in 2021, shows the point. A trust protector added a no-contest clause in the same amendment that shifted benefits to the settlor's new wife. The trial court dismissed the daughters' undue influence claim, and the new clause was then enforced against them. The Arizona Court of Appeals reversed. An amendment induced by undue influence can be void even if the influencer never held the pen. A clause added in the same sitting as a suspect change is a much weaker shield than a clause that has been in the plan for years.
- It has limits under the Trust Code. In Ohio, some rules can't be overridden by a trust's terms. They include:
- the trustee's duty to act in good faith;
- the court's power to act "in the interests of justice" (Ohio Rev. Code § 5801.04(B)); and
- the rule clauses excusing a trustee from liability fail for bad faith or reckless indifference (Ohio Rev. Code § 5810.08).
A clause aimed at validity attacks, disguised attacks, and help given to a contestant is the kind courts are prepared to enforce. The broadest provisions, including language placing the trustee's discretion beyond review, are deterrents that a court will test against those limits; they are not guarantees.
- It cuts both ways. Ohio has no good-faith exception, and Missouri hasn't adopted one. That deters strike suits. It also makes it harder for an honest child to challenge a plan that really was procured by isolation or undue influence. We don't draft these clauses to shield wrongdoing. We draft them to protect the grantor's actual wishes. The best proof that those wishes are real is a record built while the grantor is alive: a trust that is funded and used, capacity documented when it is signed, and, in Ohio, lifetime validation when a contest seems likely.
A Note for Missouri Clients
Missouri's statute says a no-contest clause is not enforceable against filings under Chapter 475 "concerning the appointment of a guardian or conservator for the settlor" or under Chapter 404 "concerning the settlor." Our incapacity-protection provision is not written as a no-contest clause. It gives the trustee discretion to withhold distributions. Still, a Missouri court could treat a penalty for a guardianship or power-of-attorney filing as a forfeiture the statute won't enforce. For Missouri clients, we draft that provision with the statute in mind. Missouri beneficiaries should likewise read § 456.4-420.7 before assuming any filing is off-limits.
Practical Takeaways
For those planning:
- Breadth: Use a broad clause that protects the whole plan, not just one document.
- Depth: Pair it with a Peace and Tranquility provision and, for an Ohio living trust, arbitration of administration disputes.
- Timeliness: Put the clause in the plan early. Don't add it in the same sitting as a controversial change.
- Resilience: Fund your trust and use it.
- Security: If a contest seems likely, consider Ohio's lifetime validation procedure.
For beneficiaries with a concern:
- In Ohio, get advice before filing anything. An accounting, a construction request, or court supervision of distribution is different from an attack on validity. The wording of the clause controls.
- In Missouri, use the safe harbor. Ask the court whether your claim triggers the clause before you file it. Knopik shows what happens when you don't.
- In either state, don't accept a distribution and keep litigating. Tharrett shows how that might end.
