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.
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.