Master Arizona Supreme Court defined the probable-cause exception to no-contest (in terrorem) clauses in will contests and clarified when and how such clauses may be enforced. with this comprehensive case brief.
In re Estate of Shumway is a leading Arizona Supreme Court decision on the enforceability of no-contest (in terrorem) clauses in wills. The case squarely addresses the statutory "probable cause" exception and sets the controlling standard for determining when a contestant's challenge—though ultimately unsuccessful—should not trigger forfeiture under a no-contest clause. By clarifying the time at which probable cause is assessed and the objective nature of the analysis, the court provides essential guidance for litigants, trial courts, and practitioners planning or challenging estates.
Shumway is frequently studied in Trusts and Estates courses because it balances two powerful policies: (1) honoring a testator's desire to deter costly, disruptive litigation; and (2) protecting the integrity of the probate process by permitting challenges supported by reasonable grounds. The decision illustrates that even robust evidence validating a will (e.g., testimony from drafting counsel and attesting witnesses) does not necessarily defeat a finding that the contestants had probable cause when they filed, thereby preventing automatic forfeiture for merely bringing a colorable contest.
198 Ariz. 323, 9 P.3d 1062 (Ariz. 2000)
An elderly testator, in declining health and dependent on others for care, executed a new will shortly before death that significantly altered his prior estate plan. The new instrument largely favored a non-familial beneficiary (a caregiver/companion figure) and reduced or eliminated the shares previously earmarked for the testator's children. The beneficiary helped facilitate the will's preparation by arranging for legal services and participating in logistics related to execution. The will included an in terrorem clause providing that any beneficiary who contested the will would forfeit benefits. After the testator's death, his children filed a will contest alleging undue influence and lack of capacity. The will's proponent responded with strong validating evidence, including affidavits from the drafting attorney and attesting witnesses, and obtained summary judgment upholding the will's validity. The trial court then enforced the no-contest clause against the children on the ground that they lacked probable cause to sue. The court of appeals largely agreed. The Arizona Supreme Court granted review to address the interpretation of Arizona's probable-cause statute governing no-contest clauses and to determine whether the clause could be enforced against the contestants.
Under Arizona's probate code, when is a no-contest clause in a will enforceable against beneficiaries who file a will contest, and specifically, what constitutes "probable cause" sufficient to render the clause unenforceable?
Arizona Revised Statutes § 14-2517 provides that a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting the proceeding. Probable cause is an objective standard, assessed as of the time the proceeding is initiated, and exists when the facts known or reasonably believed by the contestant would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the challenge would be sustained. The existence of probable cause is a question of law for the court.
The Arizona Supreme Court held that, although the will was valid and summary judgment for the proponent was proper, the contestants had probable cause to file their challenge based on the facts known at the time. Therefore, the no-contest clause was unenforceable against them under A.R.S. § 14-2517.
The court began by construing A.R.S. § 14-2517, which embodies the Uniform Probate Code policy that no-contest clauses should not chill meritorious or reasonably grounded contests. Adopting the Restatement approach, the court articulated an objective standard that focuses on the circumstances known or reasonably believed by the contestants at the time they filed. It rejected an outcome-based approach under which losing on the merits automatically defeats probable cause, noting that such a rule would undermine the statutory protection and deter good-faith challenges in precisely those situations where wrongdoing, such as undue influence, is most difficult to prove before discovery. Applying this standard, the court identified several red flags that reasonably supported the contestants' decision to sue: the testator's advanced age and vulnerability, a late-life departure from a longstanding estate plan favoring close family, the predominant benefit to a non-relative caregiver/companion, and the beneficiary's active involvement in procuring the will. These factors have long been recognized as "suspicious circumstances" in undue influence jurisprudence, sufficient to warrant further examination in court. While the proponent ultimately dispelled these concerns with strong countervailing evidence—justifying summary judgment on the merits—the existence of such red flags at the outset created probable cause for the filing. Because the statute makes enforcement of a no-contest clause contingent on the absence of probable cause, the trial court erred in imposing forfeiture. The court further clarified that probable cause is determined as a matter of law based on an objective evaluation of the facts and law as they reasonably appeared when the action was instituted, not in hindsight after a full evidentiary record has been developed.
Shumway is a cornerstone Arizona case for no-contest clauses. It teaches that forfeiture provisions do not bar beneficiaries from filing colorable challenges supported by reasonable grounds, even if those challenges fail. For law students, the case is central to mastering: (1) the statutory probable-cause exception to in terrorem clauses; (2) the undue influence framework and the role of suspicious circumstances; (3) the timing and standard for assessing probable cause; and (4) the policy balance between testator autonomy and the need to police potential overreaching in the will-execution process. The case also illustrates how courts can affirm will validity on the merits while simultaneously protecting contestants from forfeiture when their suit had an objectively reasonable basis.
A no-contest clause penalizes beneficiaries who challenge a will or take certain actions in probate. In Arizona, these clauses are generally enforceable but are expressly limited by A.R.S. § 14-2517: they are unenforceable if the contestant had probable cause to bring the proceeding. Thus, they deter frivolous litigation but do not bar reasonably grounded challenges.
Shumway adopts an objective standard: probable cause exists when, at the time of filing, the facts known or reasonably believed by the contestant would lead a reasonable person, properly informed and advised, to conclude there is a substantial likelihood the contest would be sustained. It does not require that the contestant ultimately prevail on the merits.
No. Shumway rejects an outcome-determinative approach. Even if the will contest fails (e.g., summary judgment for the proponent), the no-contest clause cannot be enforced if the contestant had probable cause when the suit was filed.
Common red flags include the testator's advanced age or diminished health; a sudden, dramatic change from a longstanding estate plan; disproportionate benefit to a non-relative such as a caregiver or companion; the beneficiary's active role in procuring the will (arranging the lawyer, execution, or isolating the testator); and secrecy around the will's preparation. These circumstances can justify filing a contest, even if they are later rebutted.
Probable cause is assessed as of the time the contest is initiated, focusing on what was known or reasonably believed then. The court determines probable cause as a matter of law, applying an objective standard to the contemporaneous facts and governing legal principles.
Shumway directly interprets Arizona's will-specific statute, A.R.S. § 14-2517. However, its reasoning about the objective, time-of-filing probable-cause standard and the policy balance is often cited by analogy in trust litigation where similar in terrorem provisions and probable-cause concepts are at issue under comparable statutory or common-law frameworks.
In re Estate of Shumway clarifies that the enforceability of no-contest clauses turns not on whether a contestant ultimately wins or loses, but on whether the contestant had objectively reasonable grounds to file at the time of initiation. The decision preserves testators' ability to deter baseless disputes while safeguarding the probate system's capacity to uncover undue influence and other wrongdoing.
For students and practitioners, Shumway is a blueprint for evaluating will contests involving in terrorem provisions: identify suspicious circumstances, assess what was known at filing, apply an objective standard framed by statute and Restatement guidance, and keep separate the merits question (is the will valid?) from the forfeiture question (did the contestant have probable cause?).
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