A residuary clause can look straightforward when it names a group of relatives and says they take “equally.” But the result can change dramatically when one or more of those beneficiaries dies before the testator.

That is the central lesson of Johnson v. Mayers, SC-2025-0297 (Ala. June 27, 2025). The Alabama Supreme Court held that Alabama’s antilapse statute did not apply where the will used survivorship language and provided an alternative disposition if none of the named beneficiaries survived the testator. Because only one named beneficiary survived, that beneficiary received the entire residuary estate.

For estate planners, the case is a reminder that the words used to address a beneficiary’s death are not boilerplate. They decide whether a deceased beneficiary’s descendants take by substitution, whether surviving named beneficiaries take a larger share, or whether the property passes to a different contingent class.

The dispute in Johnson

The will first left the estate to the testator’s father. If the father did not survive, the will directed that the residuary estate pass equally to four named siblings. It then provided that, if none of those persons survived the testator, the estate would pass to the testator’s nearest living heirs.

By the time the testator died, only one of the four named siblings was alive. The children of two deceased siblings argued that Alabama’s antilapse statute should allow them to take their parents’ shares by representation.

The Supreme Court disagreed. The Court held that the will’s survivorship language and its alternative gift showed a contrary testamentary intent sufficient to prevent application of the statutory default. The sole surviving named beneficiary therefore took the entire residue.

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What Alabama’s antilapse statute does

Alabama’s antilapse statute, Ala. Code § 43-8-224, is a default rule. In qualifying circumstances, it can preserve a devise for the issue of a deceased beneficiary who was a grandparent or lineal descendant of a grandparent of the testator.

The rule exists because a will may name a close relative who later dies before the testator. Without a substitute disposition, a strict lapse rule can produce a result the testator may not have intended.

But the statute does not override a clearly expressed contrary intent. Alabama law gives controlling effect to the testator’s intent as expressed in the will, and construction rules such as the antilapse statute apply unless the instrument indicates otherwise.

Why survivorship language mattered

In Johnson, the Court treated the will’s requirement that the named beneficiaries survive the testator as evidence that the gift was limited to the named beneficiaries still living at death. The will also addressed the contingency that none of those named beneficiaries survived, directing the residue to the testator’s heirs.

Those two features worked together:

• Survivorship language indicated that only named beneficiaries who outlived the testator would take; and

• An alternative gift answered the next question—what happens if all of the named beneficiaries are gone.

The result was not a partial share for each deceased beneficiary’s descendants. Instead, the one surviving named beneficiary received the full residue.

“Equally” does not answer every survivorship question

Estate planners often use language such as “to my children equally,” “to my siblings in equal shares,” or “share and share alike.” That language identifies the intended division among the relevant beneficiaries, but it may not answer what happens when one of them predeceases the testator.

The answer depends on the entire clause, including:

• whether the beneficiaries are named individually or described as a class;

• whether the will requires survival;

• whether it names substitute beneficiaries;

• whether the instrument directs distribution by representation, per stirpes, or per capita; and

• whether it contains a gift-over if one, some, or all beneficiaries fail to survive.

A drafter should not assume that “equally” alone carries the client’s intended result through every possible death sequence.

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Three questions for every residuary clause

1. Who takes if one named beneficiary dies before the testator?

The client may intend for that beneficiary’s children to take the share, for the surviving named beneficiaries to divide it, or for a separate contingent beneficiary to receive it. Those are different plans and should be stated directly.

2. Does the client want descendants to take by substitution?

If the client wants a deceased beneficiary’s descendants to step into that beneficiary’s place, the will should say so clearly. If the client does not want substitution, survivorship language and an expressly stated alternative plan should be reviewed for consistency with that objective.

3. What happens if no primary beneficiary survives?

A complete residuary clause should address the failure of the entire primary class. The alternative gift should be coordinated with the client’s intended heirs, charitable beneficiaries, trust plan, or other ultimate recipients.

A drafting review checklist

Before finalizing a will that names multiple relatives in a residuary clause, test the clause against common scenarios.

ScenarioQuestion to answerOne named beneficiary dies before the testatorDoes that beneficiary’s share pass to descendants, surviving named beneficiaries, or a different contingent beneficiary?A beneficiary dies leaving children from a prior relationshipDoes the instrument clearly include or exclude those descendants?Only one named beneficiary survivesShould that person receive the entire residue, or should deceased beneficiaries’ descendants share?No named beneficiary survivesWho takes next, and is that group identified precisely enough?A beneficiary disclaims or is treated as having predeceasedDoes the clause address that possibility consistently with the client’s intended distribution?A beneficiary is a minor or has special needsShould the gift pass outright, to a trust, or under another protective arrangement?

The client should be able to hear each scenario in plain language and confirm the intended result. That conversation often reveals a gap that a general “equally” provision does not solve.

Practice points for estate planners

Use the client’s distribution objective, not inherited form language

A prior will form may say that gifts pass “to my surviving children” or “to my siblings who survive me.” Those words may be entirely appropriate, but they should not remain simply because they appeared in an earlier document. Ask whether the client wants a bloodline or family-branch result, a survivor-take-all result, or a different contingent plan.

Coordinate specific gifts and the residue

A will may have detailed survival language in a specific devise but vague language in the residuary clause—or the reverse. Review the instrument as a whole to make sure its survival requirements, substitute gifts, and residual plan do not pull in different directions.

Avoid relying on the statutory default as the estate plan

The antilapse statute can supply a rule when the will is silent, but the default may not match the client’s intent. A will should state the intended succession plan rather than leave a family’s distribution to statutory construction after a death occurs.

Revisit old wills after major family changes

The operative will in Johnson had been executed decades before the testator died. A periodic review after a beneficiary’s death, divorce, birth of grandchildren, blended-family change, or substantial asset change can prevent the residue from passing under language the client no longer understands or would not choose today.

Administration lesson: resolve dispositive construction issues early

Johnson also contains an important procedural point. During the estate administration, the administratrix sought a declaratory judgment construing the will and determining whether the antilapse statute applied. The Supreme Court held that the declaratory judgment was final and appealable because it resolved all issues presented in that construction petition, even though the overall estate administration had not yet reached final settlement.

For personal representatives and probate litigators, that provides a practical roadmap. When a construction issue determines who is entitled to the residue, resolving it early can prevent distributions based on an incorrect reading of the will and can give the estate a clear path toward final settlement.

The decision does not mean every interim probate ruling is immediately appealable. It means that a declaratory judgment that conclusively resolves the claims raised in a will-construction petition can be final for appellate purposes even while other estate-administration work continues.

Bottom line

Johnson v. Mayers reinforces a familiar but important proposition: the testator’s expressed intent controls. Alabama’s antilapse statute is a valuable default rule, but it gives way when a will clearly requires survivorship and supplies a contrary contingency plan.

For drafters, the lesson is to make the survivorship sequence explicit. For administrators, it is to identify and resolve construction questions before distributing an estate. And for clients, it is a reminder that a few words in the residuary clause can determine whether descendants inherit—or whether one surviving named beneficiary receives everything.

This article is for general informational purposes only and is not legal advice. It discusses Alabama law and the particular will language considered in Johnson v. Mayers. The outcome in an individual estate depends on the governing instrument, family relationships, relevant facts, and applicable law.

A no-contest clause can be an important estate-planning tool. It may discourage meritless will contests, protect family privacy, and reduce the prospect of expensive, destructive litigation. But a clause drafted too broadly can create a different kind of risk: it can appear to penalize a beneficiary for seeking basic information about an estate or for invoking court-supervised protections.

The Alabama Supreme Court’s recent decision in Banks v. Banks, SC-2024-0857 (Ala. Apr. 17, 2026) is a useful cautionary example. It involved a will that required beneficiary disputes to be presented to a private advisory committee and stated that the committee’s decisions would not be subject to judicial review. The dispute also implicated an in terrorem clause and a beneficiary’s request for an inventory and accounting.

The Supreme Court affirmed the judgment below without an opinion under Rule 53. The case therefore should not be read as a Supreme Court merits holding that every private dispute-resolution mechanism or every forfeiture provision is enforceable. Separate writings emphasized preservation problems and raised substantial concerns about private decision makers determining forfeiture, judicial oversight of estate administration, and the special protection owed to minors.

For estate planners, personal representatives, and probate litigators, the practical lesson is clear: do not rely on broad no-contest or private-dispute provisions to do work that clear drafting, fiduciary transparency, and court-supervised procedure should do.

What happened in Banks

The dispute involved two beneficiaries of their father’s will. One beneficiary, acting through counsel, sought estate financial information and asked the circuit court to require the executor to provide an inventory and accounting. The executor maintained that the will required disputes to be resolved by a private advisory committee and argued that the beneficiary’s conduct triggered the will’s in terrorem clause.

The circuit court stayed the proceeding and referred the forfeiture question to the advisory committee. The committee concluded that the beneficiary had violated the will’s instructions and should be disinherited. The circuit court later entered a judgment embracing that result.

The Supreme Court affirmed without opinion. In a concurring writing, Justice Shaw concluded that the beneficiary had meaningful opportunities to challenge the advisory-committee process but did not timely preserve a public-policy challenge to that process for appellate review. The dissenting writings expressed concern that the committee’s role and the potential forfeiture raised questions about judicial authority in estate administration and the court’s duty to protect a minor beneficiary whose relevant conduct occurred while he was still a minor.

The key point: Banks did not resolve every underlying policy question

The procedural posture matters. A Rule 53 no-opinion affirmance resolves the appeal, but it does not provide a written majority analysis of the enforceability of the will’s dispute-resolution and forfeiture provisions.

Accordingly, practitioners should resist two overbroad readings of Banks:

• It does not establish that a beneficiary’s request for an inventory or accounting always triggers an in terrorem clause.

• It does not establish that a testator can universally eliminate court review of estate disputes by directing all matters to a private committee.

The separate writings instead highlight unsettled and fact-sensitive questions: the clause’s actual wording, the relief sought by the beneficiary, the parties’ conduct in the trial court, the timing and adequacy of objections, and whether the affected beneficiary is a minor.

Why a request for an accounting deserves careful treatment

An inventory or accounting request is not necessarily a will contest. It may be part of legitimate fiduciary oversight—particularly when beneficiaries seek to understand estate assets, administration expenses, distributions, or the basis for a personal representative’s decisions.

A broadly written no-contest clause can create an avoidable conflict if it treats virtually any estate-related request, inquiry, petition, or lawsuit as a forfeiture event. That approach can chill beneficiaries from raising genuine concerns and can put the personal representative in the difficult position of characterizing routine transparency requests as hostile litigation.

The better planning question is not simply whether to include an in terrorem clause. It is whether the clause distinguishes a direct challenge to the will or an effort to defeat the dispositive scheme from good-faith requests for information, accountings, instructions, or fiduciary compliance.

Drafting lessons for estate planners

1. Define the prohibited conduct narrowly

If the client wants a no-contest provision, define the triggering conduct with precision. Avoid catch-all language that treats “any dispute,” “any proceeding,” or any request “in any way involving” the will or estate as a trigger.

A narrow definition helps the clause serve its intended purpose while reducing uncertainty about legitimate administration requests. It also gives the fiduciary, beneficiary, and court a clearer basis for analyzing alleged misconduct.

2. Address beneficiary information rights expressly

If confidentiality is important—for example, because an estate holds closely held business information—consider addressing the issue directly. The instrument can identify the information to be protected, establish reasonable procedures for access, and require appropriate confidentiality safeguards where legally permissible.

That is usually more defensible than forcing a beneficiary to choose between receiving no information and risking forfeiture by requesting it.

3. Do not assume private process can displace judicial oversight

A private advisory process may be useful as a voluntary mechanism for mediation, consultation, or family dispute management. But a provision purporting to make a private committee’s decision final, immune from any court review, and binding even on estate-administration issues raises heightened risk.

Banks shows why. The case involved a clause that purported to make the advisory committee’s decision unreviewable, and the separate writings raised concerns about the relationship between that private mechanism and judicial responsibility for estate administration. A planner seeking to use a private process should state its scope, procedures, decision-maker qualifications, conflicts standards, and relationship to the court’s lawful authority with great care.

4. Build special safeguards for minors and protected beneficiaries

The Banks record involved conduct taken on behalf of a beneficiary while that beneficiary was a minor. The dissenting justices emphasized the court’s protective role in matters involving minors and their property interests.

Whether or not a no-contest clause applies to adults, planners should be especially cautious about any mechanism that could impose forfeiture on a minor or protected person based on actions taken by a guardian, conservator, guardian ad litem, or lawyer. The instrument should not assume that a private process can supplant the safeguards that a court may be required to provide.

Administration lessons for personal representatives

A personal representative confronting a beneficiary information request should separate two questions:

1. What information or accounting is legally required or appropriate?

2. Does the beneficiary’s conduct actually fall within a narrowly construed forfeiture provision?

Those questions should not collapse into one another. An executor’s concern about confidentiality, family conflict, business operations, or disclosure to third parties may be legitimate. But the response should be proportionate: consider a confidentiality arrangement, a limited production, an agreed protocol, a petition for instructions, or other appropriate procedural means.

Seeking forfeiture is a serious step. Before asserting it, counsel should evaluate the text of the clause, the beneficiary’s actual conduct, the governing procedural posture, the potential consequences, and whether the asserted breach is sufficiently clear to support such an extraordinary remedy.

Litigation lesson: raise the authority and public-policy issues early

The concurring writing in Banks is a reminder that preservation can control an appeal. The beneficiary challenged the advisory process and the potential forfeiture in the trial court, but the concurrence concluded that a broader public-policy challenge to the committee’s authority was not properly presented for appellate review because it was raised too late.

The litigation lesson is straightforward: if a party contends that a testamentary dispute-resolution or forfeiture provision is unenforceable, exceeds the permissible scope of private dispute resolution, conflicts with judicial authority, or cannot be applied to a particular beneficiary, counsel should present the issue clearly and promptly in the trial court.

A litigant should not wait for an unfavorable private decision and then assume the court or appellate court will reach a newly framed challenge. The pleadings, motion practice, objections to referral, proposed orders, and postjudgment filings should all be coordinated around the specific issue counsel needs preserved.

A practical pre-forfeiture checklist

Before asserting that a beneficiary has forfeited an inheritance under a no-contest clause, consider the following:

Question

Why it matters

What is the clause’s exact triggering language?

Forfeiture provisions should be read carefully; broad conclusions based on generalized “dispute” language create risk.

What did the beneficiary actually do?

Distinguish a will contest or effort to defeat the dispositive plan from an information request, accounting request, or administration-related petition.

Was the beneficiary’s conduct taken directly, or by a fiduciary or representative?

This is especially significant when the beneficiary was a minor or protected person.

Is the private process clearly defined and procedurally fair?

Undefined decision makers, conflicts concerns, lack of notice, and the absence of meaningful review increase litigation risk.

What court authority remains implicated?

Estate administration, fiduciary accountings, and protection of minors may involve functions that cannot simply be assumed away.

Has the legal theory been preserved?

Timely objections and a clear trial-court record are essential if enforceability or public policy will be raised on appeal.

Is there a less drastic route?

Information protocols, confidentiality agreements, mediation, petitions for instructions, and targeted court relief may resolve the dispute without a forfeiture fight.

The planning takeaway

No-contest clauses remain useful when they are tailored to the client’s legitimate objectives. But the broadest clause is not always the strongest clause. A provision that threatens forfeiture for every dispute can deter legitimate oversight, produce ambiguous administration conflicts, and invite litigation over the clause itself.

A more durable plan will:

• identify the conduct the client truly wants to deter;

• preserve reasonable paths for beneficiaries to obtain appropriate estate information;

• use confidentiality and dispute-management provisions that are defined and workable;

• avoid assuming that private actors can conclusively replace a court’s role in every estate dispute; and

• address minors and protected persons with special care.

Bottom line

Banks is not a blanket answer to whether a no-contest clause may penalize a request for an accounting. The Supreme Court affirmed without a majority opinion, and the separate writings make clear that significant issues remained outside the scope of a merits holding.

Still, the case offers a valuable warning. Estate planners should draft forfeiture provisions narrowly. Personal representatives should not casually equate a request for information with a prohibited challenge. And litigators should preserve any objection to an asserted private dispute-resolution mechanism before the process produces an adverse result.

This article is for general informational purposes only and is not legal advice. It addresses Alabama law and the procedural posture of Banks v. Banks; the enforceability of a particular no-contest or private dispute-resolution provision depends on the governing instrument, facts, and applicable law.