No-contest clauses—also known as in terrorem clauses or forfeiture clauses—are provisions in wills and trusts that penalize a beneficiary who challenges the validity of the instrument. The typical no-contest clause provides that if a beneficiary contests the will or trust, that beneficiary’s share is forfeited and distributed to the remaining beneficiaries or to an alternate taker. The purpose is straightforward: to deter beneficiaries from bringing meritless challenges that consume estate resources and delay distribution. Whether these clauses actually achieve that purpose depends on whether they are enforceable under applicable law—and in Mississippi, the answer is nuanced.^[1]

Enforceability Under Mississippi Law

Mississippi has adopted the Uniform Trust Code, which includes specific provisions addressing no-contest clauses in trust instruments. Under Miss. Code Ann. § 91-8-1014, a no-contest clause in a trust is enforceable unless the beneficiary who brings the contest had probable cause for doing so. This probable cause exception is a critical feature of the Mississippi approach: it balances the testator’s interest in discouraging frivolous contests against the beneficiary’s interest in challenging an instrument that may genuinely be the product of fraud, undue influence, or incapacity.

The probable cause standard means that a beneficiary who has a reasonable basis for believing that the trust was procured through wrongful conduct may bring a contest without risking forfeiture, even if the contest ultimately fails. Conversely, a beneficiary who brings a contest without probable cause—a contest motivated by disappointment with the distribution rather than by genuine evidence of wrongdoing—risks losing whatever bequest the trust provides.

For wills, Mississippi law has historically been somewhat less explicit about no-contest clauses, though courts have generally recognized their validity subject to similar equitable limitations. The trend in Mississippi, consistent with the Uniform Trust Code’s approach, is to enforce no-contest clauses unless the contest was brought in good faith with probable cause.^[2]

What Constitutes a “Contest”?

One of the most litigated questions involving no-contest clauses is what actions constitute a “contest” that triggers the forfeiture. The answer depends on the specific language of the clause and the court’s interpretation of that language. Some no-contest clauses are broadly drafted to encompass any legal proceeding that challenges the instrument; others are more narrowly focused on specific types of challenges such as claims of incapacity, undue influence, or fraud.

Courts generally distinguish between a direct contest—a proceeding that challenges the validity of the will or trust itself—and ancillary proceedings that involve the interpretation or administration of the instrument without challenging its validity. A petition for will construction (asking the court to interpret ambiguous language) is typically not a contest. A petition for an accounting (asking the trustee to provide financial information about the trust) is typically not a contest. A petition to remove a trustee or executor for breach of fiduciary duty may or may not be a contest, depending on the specific language of the clause and the nature of the allegations.

The distinction matters because the consequences of triggering a no-contest clause are severe—complete forfeiture of the beneficiary’s interest. Courts are understandably cautious about applying this penalty and tend to construe no-contest clauses narrowly, limiting forfeiture to the specific types of challenges that the clause clearly encompasses. A beneficiary who takes action that arguably falls within the scope of a no-contest clause should obtain legal advice before proceeding, because the cost of a misstep is the loss of the entire bequest.^[3]

The Probable Cause Defense

The probable cause defense is the safety valve that prevents no-contest clauses from operating as absolute bars to legitimate challenges. Under the Mississippi Uniform Trust Code, probable cause exists when, at the time of the contest, the beneficiary reasonably believed that the claim had merit based on the facts and circumstances then known. The standard is objective: it asks whether a reasonable person in the beneficiary’s position would have believed that the contest had a reasonable likelihood of success, not whether the beneficiary subjectively believed the contest was justified.

Establishing probable cause does not require the beneficiary to prove that the contest would have succeeded on the merits. It requires a showing that the beneficiary had a reasonable factual basis for the claim—evidence of the testator’s cognitive decline, evidence of the beneficiary’s involvement in the preparation of the instrument, evidence of isolation or dependency, or other circumstances that would lead a reasonable person to question the instrument’s validity. The standard is analogous to the probable cause standard in other legal contexts: it requires more than mere suspicion but less than proof by a preponderance.

For estate litigators, the probable cause defense creates a threshold inquiry that must be addressed at the outset of any contest involving a no-contest clause. Before filing the contest, counsel should evaluate whether the available evidence is sufficient to establish probable cause. If it is, the beneficiary may proceed with reduced risk of forfeiture. If it is not, the beneficiary must weigh the potential recovery from a successful contest against the certainty of forfeiture if the contest is deemed to lack probable cause.

Drafting Considerations

For estate planners, no-contest clauses are a useful but imperfect tool. Their effectiveness depends on several factors.

First, the clause must be drafted with sufficient precision to identify the types of actions that trigger forfeiture. Overly broad clauses may be narrowly construed by courts; overly narrow clauses may fail to deter the specific types of challenges the testator seeks to prevent. The clause should clearly identify whether it applies to will contests, trust contests, challenges to specific provisions, claims against fiduciaries, or some combination of these.

Second, the clause is only effective if the beneficiary has something to lose. A beneficiary who is entirely disinherited has no incentive to comply with a no-contest clause because there is nothing to forfeit. The most effective no-contest clauses are those paired with meaningful but not overwhelming bequests to the beneficiaries most likely to contest—enough to create a genuine disincentive to challenge the instrument, but not so much that the forfeiture is trivial relative to what the beneficiary might gain from a successful contest.

Third, the testator’s intent should be clearly documented. If a contest is brought, the court will consider the testator’s purpose in including the clause and the circumstances surrounding the estate plan. A testator who can articulate specific reasons for the distribution plan—and specific reasons for anticipating a challenge—strengthens the enforceability of the clause and the proponent’s position in defending it.^[4]