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“No Contest” Clause In Will Requires Court Interpretation

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James Ferber knew something about probate proceedings. The California man had been personal representative for his father’s estate, and did not have positive feelings about the proceeding. Due to several family quarrels (and one lawsuit filed against James over his handling of the probate), the estate was open for 17 years. He resolved that his own estate would not be such a legal morass, and he took steps to prevent a repeat of his earlier experience.

In 1987, Mr. Ferber discussed his estate plan with his attorney. He instructed the lawyer to include a “no contest” clause which would disinherit anyone who brought any action against the estate or his personal representative. In fact, he instructed the lawyer, the no contest provision should be as broad as possible. The result, signed in March of 1987, was a 225-word sentence designed to disinherit anyone who contested the will, any action of the personal representative, or almost any aspect of the estate administration. He named his brother Richard as personal representative.

Mr. Ferber died just four months after signing his will. He left an estate of about $4.6 million, with most going to family members. The only non-family member to receive any funds was Richard’s friend Sandra Plumleigh; she was left $250,000.

In September, 1987, Richard Ferber introduced his brother’s will to probate court in California and began administration of the estate. It was not until almost eight years later that Sandra Plumleigh decided she might have to take some action to force resolution of the estate. She wanted to seek Richard Ferber’s removal as personal representative, object to his accounting (filed a year later), and seek review of his handling of jointly-owned property.

No contest clauses like James Ferber’s (lawyers usually refer to such provisions by their Latin name, in terrorem clauses) create a dilemma for devisees. Knowing they might be disinherited if they file any legal proceedings, they nonetheless have an interest in efficient administration of the estate and proper resolution of conflicts.

California law permits devisees like Ms. Plumleigh to file a special kind of lawsuit, effectively seeking an advance determination of whether the in terrorem clause will be invoked by filing a petition in the probate proceeding. Ms. Plumleigh took advantage of that procedure. She argued that preventing her from challenging the administration of the estate would be against public policy, and that there was a solid basis for her objections. The court gave its blessing for her to file her petition.

The California Court of Appeals partially agreed. Richard Ferber had argued that there was no need to permit Ms. Plumleigh’s objections to his accounting, since the probate court itself could oversee his administration of the estate. The appellate judges pointed out, however, that probate courts “lack the resources to scrutinize every matter for executor malfeasance. They must rely on beneficiaries to be aware of the facts and raise cogent points.” So long as Ms. Plumleigh’s attempt to remove Richard Ferber as personal representative was not “frivolous,” the judges would permit her to file.

Ms. Plumleigh’s other requests received mixed results. Although she was permitted to object to Richard Ferber’s accounting, the judges did not pre-approve her request to challenge the characterization of jointly-owned property. Meanwhile, no one seemed to notice the irony of James Ferber’s “no contest” clause resulting in an 11-year probate and one trip to the Court of Appeals.Estate of Ferber, August 24, 1998.

The Ferber case might have turned out differently under Arizona law. The probate code in Arizona simply provides that a no contest provision “is unenforceable if probable cause exists” for an action to challenge the will or the personal representative.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.