No Contest Clauses & Fiduciary Exception Rule to Attorney Client Privilege

Heart of America Regional Meeting
Session IX
May 1 – 3, 2026
St. Louis, MO

Trust and estate attorneys are seeing no contest clauses, also known as forfeiture provisions or in terrorem provisions, more frequently than in years past. Depending on the jurisdiction, there are limits on the enforceability of these provisions. Among other things, these provisions generally cannot be used to dissuade a beneficiary from seeking an accounting, or asking for construction or instructions regarding a trust. In addition, many jurisdictions allow a “safe harbor” defense, where a challenge against a testamentary instrument is lodged in good faith and with just cause. This presentation will cover the state of the law in Heart of America states, and cover notable decisions enforcing or declining to enforce these provisions.

The fiduciary exception to attorney-client privilege, if it exists in your jurisdiction, would give beneficiaries and their counsel “a peek under the hood” regarding attorneys’ representation of fiduciaries. Many federal courts have adopted the exception in ERISA litigation. Some states have adopted the exception with respect to trusts and estates governed by state law. This presentation will cover the state of the law in Heart of America states and around the country, including legislative “fixes” used in some states. This presentation will also address best practices to be followed by fiduciaries and their legal counsel to protect against inadvertent or damaging disclosures resulting from this exception.

Speaker: James C. Milton