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Are No Contest Clauses In Wills Enforceable In Oklahoma?

The validity of no contest clauses or “in terrorem” clauses attached to wills has long been recognized in Oklahoma.  No contest clauses in Oklahoma are enforceable, unless the court finds that the will or trust contest is brought in good faith and for probable cause.

No contest clauses are generally favored as a matter of public policy in Oklahoma because they protect estates from costly, time consuming, and vexatious litigation, and minimize family bickering concerning the competence and capacity of the testator as well as the amounts bequeathed.

No contest clauses attached to trusts are also valid in Oklahoma.

No Contest Clauses In Oklahoma Are Strictly Construed

No contest clauses in Oklahoma wills and trusts are strictly construed against forfeiture of the gift, and reasonably construed in favor of the beneficiary.

When Is a No Contest Provision Triggered In Oklahoma?

An action contesting a will or otherwise designed to thwart the testator’s wishes will invoke a no contest clause under Oklahoma law.

In In re Estate of Westfahl, the Oklahoma Supreme Court generally defined when a beneficiary’s action is sufficient to invoke a no contest provision:

The word, contest, as it pertains to a no contest clause is defined as any legal proceeding designed to result in the thwarting of the testator’s wishes as expressed in the will.   Whether there has been a contest within the meaning of the language used in the clause is decided according to the circumstances in each case ․ The intention of the testator is controlling;  when the court construes a will, it must ascertain and give effect to the testator’s intent, unless the intent attempts to effect what the law forbids.   Each will must be construed by examining the peculiar surrounding circumstances, the language employed, and the intention of the testator gathered from the general situation.   Attendant circumstances may be contemplated to perceive the testator’s true intent and the testator’s feelings toward the beneficiary named in the will.

What Actions Are Not Considered Contests For Purposes Of a No Contest Clause?

The following actions have been held not to be contests, and therefore not triggering of the no contest clause:

  • Construction of a will
  • Resolving administrative concerns
  • Challenging an executor’s suitability for appointment
  • Filing creditor claims


Does a Spousal Election Invoke a No Contest Clause?

No.  The Oklahoma Supreme Court has clearly ruled that a spousal election does not invoke no contest clauses.

In the case of In re Rettenmeyer’s Estate, 1959 OK 199, 345 P.2d 872 (overruled on other grounds, see In re Bovaird’s Estate, 1982 OK 48, 645 P.2d 500 ), a testator and husband married after entering into an antenuptial contract wherein each released claims to the other’s property.   When the testator later died and her will was probated, the husband attempted to make a spousal election.   The executrix claimed that the spousal election invoked the forfeiture clause of the will.   The trial court agreed.   The Supreme Court reversed, holding that the husband’s right to make such an election had been waived by the antenuptial agreement and since he could not elect his spousal share, the election was insufficient to constitute a “contest.”   The court further went on to state:

To hold the election was a violation of the “no contest” clause in the codicil would render nugatory the quoted statutory provisions [for spousal election] and deter parties from seeking their lawful rights.  This holding recognizes the public policy of ensuring a mandatory share to the surviving spouse absent his or her voluntary relinquishment.   Accordingly, we hold as a matter of law that a spousal election is not sufficient to invoke a no contest clause.

Good Faith Or Probable Cause Exception

The Oklahoma Supreme Court recognizes the good faith or probable cause exception to enforcing no contest clauses.

In In re Estate of Westfahl, 1983 OK 119, 674 P.2d 21, the testator’s daughter attempted to invoke a no contest clause in a 1963 will which was admitted to probate after her brother failed in his proffer of a 1976 will executed by their father.   The probate court disallowed the latter will due to the brother’s undue influence, but refused to allow invocation of the no contest clause.   On appeal, the Supreme Court affirmed, finding that the brother believed that the 1976 will was valid and had sponsored it in good faith:

Although there is a split of authority concerning whether a forfeiture clause will be enforced if good cause is shown, the consensus rule is that the forfeiture clause should not be invoked if contestant had probable cause․

Your Oklahoma probate attorney will advise you as to whether your potential will or trust contest is strong enough to be filed and the likelihood of overcoming any no contest clause.

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