Fenner v. Fenner

"No-contest provisions are valid and enforceable," but should be read narrowly using the express terms contained therein. Frakes v. Nay, 254 Or App 236, 247-248 (2012).

Appellant sought review of a limited judgment that dismissed her petition for declaratory relief pursuant to a trust in which Appellant and her Sister were designated beneficiaries. Appellant assigned error to the trial court's granting of Sister's motion for summary judgment on the basis that her amended pleadings avoided a challenge to the trust's validity. Appellant argued that Sister surrendered her interest in the trust when she petitioned to have part of the trust declared void, as there was a no-contest clause in the trust barring such action. In response, Sister argued that the no-contest clause was not triggered because her initial petition was amended before Appellant responded to the claim(s), and this was sufficient to avoid "commencing" a challenge to the trust. As previously held, "no-contest provisions are valid and enforceable," but should be read narrowly using the express terms contained therein. Frakes v. Nay, 254 Or App 236, 247-248 (2012). The Court of Appeals held that while Sister’s petition did not violate the no-contest clause, the disposition from the trial court should have been a judgment that declared the sisters’ rights to the trust in lieu of a dismissal. Vacated and remanded.