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“No-Contest” Clause in Trust Works Both Ways

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No-contest clause in Arizona

From time to time we write about “no-contest” clauses in wills (and, sometimes, in trusts). The provisions are popular. Many people think including such a provision will reduce the likelihood of disputes among their heirs. That often turns out to be the case — but not always.

What is a no-contest clause?

The precise language of a no-contest provision can vary. Typically they include language that penalizes any legal action to contest the will. Sometimes they might prohibit even assisting another contestant. The no-contest provision might affect a will, a trust or both.

No-contest clauses are sometimes called “in terrorem” provisions. The whole intent is to terrify family members who might consider a challenge.

Ralph Credille’s Revocable Trust

Arizona resident Ralph Credille created a trust in 2014. He wanted his three children to receive the bulk of his property, and in equal shares. Ralph lived in a unique part of the state — the so-called “Arizona Strip.” What makes the Strip unique? It is separated from the rest of Arizona by the Colorado River and the Grand Canyon, and is therefore an isolated, rural area just a few minutes from Las Vegas, Nevada.

Ralph apparently thought his children might want to keep his manufactured home and the land it sat on in Beaver Dam, Arizona. In fact, his son Doug was living in the home when Ralph died. Ralph had named Doug as trustee, and Doug  believed that meant he could continue to live in Ralph’s home rent-free.

Ralph’s trust had two unusual provisions. In one, he gave his three children authority to vote on whether to divide the property into three shares, keep it in the trust, or sell it. Doug’s two siblings notified him that they wanted the property sold, and the proceeds divided.

The other unusual provision in Ralph’s trust was a no-contest clause. It said that any of the three children who contested the trust would “forfeit all interest in any property, income or other benefit,” and that a forfeited interest would be distributed as if the contestant had died before Ralph. That left Doug’s siblings with difficult choices about how to proceed.

Ultimately, the siblings filed a claim in the Arizona probate court. They asked the judge to remove Doug as trustee and affirm that his sister would take over the trust. In addition to failing to honor their wishes regarding the home, they pointed out that Doug had also failed to distribute Ralph’s personal belongings or his brokerage account.

The no-contest provision at work

Doug immediately objected to his siblings’ petition. He argued that their challenge to his authority constituted a contest of the trust, and they should be disinherited because of it.

Then Doug took a second step. He added a claim that the trust should be modified to reflect Ralph’s real intentions. He asked that the court include a provision specifically authorizing the trust to retain the home for the benefit of any child — including him — who might need a place to live.

Doug’s siblings responded to that by arguing that Doug had now violated the no-contest provision. By seeking to modify the trust, he was effectively challenging it, they argued. Besides, they insisted, Doug had no evidence to support his assertion.

The probate court agreed with Doug’s siblings. She ruled that they had not contested the trust — especially since they were right. They had sought to enforce the trust’s terms, and would not be penalized for their court filing.

Doug, however, had challenged the trust. The probate judge found that he had been disinherited by his actions; she removed him as trustee, appointed his sister and ordered her to distribute as if he had predeceased Ralph.

The Court of Appeals

The Arizona Court of Appeals agreed with the probate judge. Ralph’s no-contest provision worked both ways — it would have penalized Doug’s siblings if they had challenged the trust, and it did penalize Doug for his attempt to modify the trust’s terms.

Doug had also argued that Ralph’s trust was ambiguous. In one place it gave the three children equal votes on retention, division or sale of the property. In another, it expressed his hope that his offspring would keep the property in the family in perpetuity. That, said the Court of Appeals, was not an ambiguity; the specific language about equal votes clearly controlled Ralph’s statement of his desire for the property. Besides, Doug had introduced no evidence to support his argument about Ralph’s intentions. Maatter of Credille Revocable Trust, September 27, 2018.

No-contest provisions are powerful. Sometimes they can have unexpected consequences. Even though the Arizona Strip may be a long way from lawyers, it might have done Doug good to get competent legal advice in his administration of his father’s trust.

Assuming Ralph had wanted to prevent disputes among his children, what might he have done differently? First, he might have made clear that they either had let Doug live in the home — or not. Apparently, Doug had been living there for some time, so perhaps he could have anticipated the problem. The use of a no-contest provision, though, might actually have lulled Doug into a false sense of security about his (incorrect) view of his legal opinion. With hindsight, at least, it might also seem obvious that Doug was not the right child to trust with the job of successor trustee.

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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.