Can a No-Contest Clause Punish a Beneficiary for Seeking an Estate Accounting?

Drafting and litigation lessons from Banks v. Banks

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.