In The Matter of The Estate Rex Felten

• Court: Supreme Court of Iowa
• Decided: November 25, 2025
• Docket: 24-1053
• Status: Published

Opinion

In the Iowa Supreme Court

No. 24–1053

Submitted September 09, 2025—Filed November 25, 2025

In the matter of the Estate of Rex L. Felten, deceased.

Kathy Felten,

Appellant,

vs.

Karen Hoffman, individually and as executor of the Estate of Rex L. Felten, Appellee.

Appeal from the Iowa District Court for Clinton County, Stuart P. Werling,

judge.

A daughter disinherited by operation of a “no contest” clause in her father’s

will seeks reversal of an order overruling her objections to the final report of his

estate. Affirmed.

Waterman, J., announced the judgment of the court and delivered an

opinion, in which Oxley, J., joined. May, J., filed an opinion concurring in the

judgment, in which McDonald, J., joined. McDermott, J., filed a dissenting

opinion, in which Christensen, C.J., joined. Mansfield, J., took no part in the

consideration or decision of the case.

Benjamin Arato (argued) of Wandro, Kanne & Lalor, P.C., Des Moines, for

appellant.

Susan M. Hess (argued) and Sahil Kumar of Hammer Law Firm, PLC,

Dubuque, for appellee. 2

Waterman, Justice.

“Happy families are all alike; every unhappy family is unhappy in its own

way.” Leo Tolstoy, Anna Karenina 3 (Leonard J. Kent & Nina Berberova eds.,

Constance Garnett trans., Mod. Libr. Paperback 2000) (1878). Familial strife

poses challenges in estate planning. How can the patriarch of a conflict-ridden

family draft his will to avoid additional conflict and costly litigation? One

planning tool is an in terrorem1 or “no contest” clause intended to discourage will

contests by disinheriting any beneficiary who challenges the will. But what if

there seem to be valid grounds to challenge the will? Iowa law has long provided

a safe harbor for such challenges: if the challenge was filed in good faith and

with probable cause, then the challengers take their inheritance even though

their will contest was unsuccessful.

In this appeal, the eighty-nine-year-old patriarch executed a new will with

a no-contest clause shortly before he died. The new will allegedly made

significant changes from the prior will that divided the property evenly among

the children. Under the new will, one daughter received the bulk of the estate,

with much smaller gifts to the two remaining children. The disfavored children

sued to set aside the new will, arguing that the favored daughter had secured

the inheritance by unduly influencing their mentally infirm father. A jury rejected

their challenge, and the district court enforced the no-contest clause. The losing

daughter appeals, and both parties urge us to clarify the meaning of “good faith”

and “probable cause” in this context, noting we have not revisited those issues

since 1950. We retained the case to do so.

1From the Latin, meaning “[b]y way of threat.” In Terrorem, Black’s Law Dictionary 980

(12th ed. 2024). 3

We clarify our precedent by holding: (1) the challenger bears the burden of

proving her good faith and probable cause under a totality-of-the-circumstances

test, (2) good faith is a subjective standard, and (3) probable cause should be

assessed using the definition contained in comment c to section 8.5 of the

Restatement (Third) of Property, see 2 Restatement (Third) of Prop.: Wills & Other

Donative Transfers § 8.5 cmt. c, at 195 (A.L.I. 2003) [hereinafter Restatement

(Third) of Prop.] (requiring the challenger to prove “there was evidence that would

lead a reasonable person, properly informed and advised, to conclude that there

was a substantial likelihood that the challenge would be successful”).

On our de novo review of the record, with deference to the factual findings

of the district court, we determine that the challenger failed to prove that she

filed her will contest in good faith and with probable cause. We therefore affirm

the district court ruling that enforced the no-contest clause.

I. Background Facts and Proceedings.

Rex Felten and his wife, Mildred, had two daughters (Karen and Kathy)

and one son (Kenneth). The family lived on Rex’s farm near Maquoketa, Iowa,

where they raised chickens and dairy cattle and cultivated corn and hay. Mildred

died in 2002, leaving Rex to live alone. After his wife’s death, Rex struggled to

care for himself.

In the mid-2000s, Rex underwent two knee surgeries, which increased the

hardship of living alone. To aid her father’s convalescence, Kathy moved into

Rex’s home. There, she assisted him with daily activities.

By 2013, Rex’s health had so deteriorated that he required full-time

assistance. Kathy sold her home and took a larger role in caring for her father,

feeding and bathing him, managing his medications, running errands for him,

and addressing his continence issues. Rex also entrusted Kathy with his 4

financial affairs, granting her power of attorney (POA) to permit her to access his

bank accounts and credit cards.

Rex’s health continued to decline. He grew paranoid and forgetful. He was

diagnosed with mild dementia. Rex’s mother and sister had dementia, and Kathy

observed similar behavior in her father. Rex’s vision began to fail, necessitating

cataract surgeries in December of 2019 and January of 2020. After these

surgeries, Rex required various eyedrops. At first, Kathy helped her father

administer these drops, but soon Rex began to resist her aid. He told Kathy that

Karen had insisted that Kathy not touch the drops.

In December of 2019, Karen moved into Rex’s home. Karen and Kathy

clashed. Soon, they were fighting with such vehemence and regularity that Kathy

moved out of the house, leaving Karen as Rex’s primary caretaker. In January of

2020, Rex granted Karen POA. That April, he revoked Kathy’s POA.

Karen installed video cameras in Rex’s house and limited Kathy’s access

to Rex. In April of 2021, Karen wrote Rex a letter stating:

• “[Kathy] also used to tell me she wished you had died instead of mom

[be]cause mom would have traveled with her.”

• “You always said there are 2 kinds of people you can’t trust, a liar and

a th[ie]f. [Kathy] is both.”

• “I am a mandated reporter of abuse because of my job as a therapy

assistant. What she did with your finances is called Financial Elder

Abuse. If anyone in authority finds this out I could lose my job, pay big

fines, & serve jail time for not reporting it.”

• “Mom’s last words to me were that she was sorry the 2 of you didn’t

help me as much as you did Kathy & Kenn[eth].” 5

• “[Kathy] has been telling me for years she can’t cut your hair anymore

because it hurts her shoulders too much, so what happens if you need

more help getting in & out of bed? Would she be able to physically do

it? Or would she send you to a nursing home?”

Kathy did not see this letter until after she filed her will contest.

Karen took a role in Rex’s estate planning. Throughout his life, Rex

periodically altered his will, providing an inheritance for or disinheriting his

children as he saw fit and including no-contest clauses in his prior wills.

Whenever he was contemplating a change to his estate plan, Rex would visit his

attorney, Billy Coakley, in Maquoketa, usually with Kathy present, and would

get advice about the state of his current will, the effect that his proposed changes

would have on the prospective beneficiaries, and the tax consequences of any

proposed modifications.

After Kathy moved out, Karen and Rex began discussing his estate. Rex

would describe the changes he wanted to make, and Karen would record them.

In the summer of 2021, Rex, in consultation with Coakley, decided to overhaul

his will. The proposed will left most of his real property to Karen. Kathy was to

inherit a burial plot and the proceeds from a trust, for which Karen would serve

as trustee. To Kenneth, Rex merely left a yellow toolbox. The draft included a

no-contest clause, which provided:

If any Beneficiary of this my Last Will and Testament shall institute or cause to be instituted, directly or indirectly, any suit, action or proceeding to contest the validity of my Will, or the validity of any part thereof, or to resist its probate, or to seek the destruction or contest the validity of the Last Will and Testament, then such Beneficiary so acting shall forfeit all of his or her right, title and interest to that portion or interest in my estate which he or she would otherwise have received under the provisions of this Will, and my estate shall be administered and distributed as though such Beneficiary had predeceased me without a spouse or descendants surviving him or her; provided, however, that nothing in this 6

paragraph shall be construed to prevent a Beneficiary from seeking enforcement of his or her rights as a Beneficiary under the Will in a court of equity.

Coakley, anticipating a will contest, directed Rex to take a cognitive test and

acquire a doctor’s report documenting his competency.

On June 23, 2021, Dr. Kimberly Thompson, Rex’s family doctor,

administered a cognitive test. After Rex received a perfect score, Dr. Thompson

issued a letter stating that “[Rex] has been evaluated and is mentally competent

to make his own decisions at this time.” Coakley placed that letter in his file.

Kathy was unaware of Dr. Thompson’s letter.

Satisfied with the results of the test, Coakley made a house call, and, on

July 2, he witnessed Rex execute the new will. Nineteen days later, Rex passed

away at age eighty-nine.

Karen, as executor of Rex’s estate, admitted the will to probate. Kenneth

and Kathy challenged the will, arguing that Rex lacked testamentary capacity,

that Karen had exercised undue influence to convince Rex to disinherit Kenneth

and Kathy, and that Karen had intentionally interfered with Kenneth and Kathy’s

inheritance. Karen counterclaimed for abuse of process, alleging that the will

contest was brought in bad faith. The district court granted summary judgment

dismissing Karen’s counterclaim, ruling that genuine questions of fact

surrounding the execution of the new will supported Kathy’s challenge to the

will. The court observed that precedent supported “protecting the right of ready

access to the courts.” (Quoting Wilson v. Hayes, 464 N.W.2d 250, 267 (Iowa

1990) (en banc).) The remainder of the case went to trial.

At the close of evidence, the district court denied Karen’s motion for a

directed verdict, ruling that “[t]here is sufficient evidence on each of the three

counts for those counts to reach a jury question for the jury to determine.” 7

Ultimately, the jury returned a verdict against Kathy and Kenneth on all three

claims.

After the jury trial, Karen filed the final report in Rex’s estate. Pursuant to

Rex’s will, specifically the no-contest clause, the final report purported to

disinherit Kenneth and Kathy because of their failed will contest. Kathy objected

to the final report, arguing that, because she acted in good faith and had

probable cause to contest the will, the district court should permit her to inherit,

despite the no-contest clause. Following a hearing, at which neither side offered

any additional evidence, the district court overruled Kathy’s objections and

approved the final report, writing:

Having heard the testimony of the parties at trial and reviewed the pleadings, this Court FINDS that Kathy’s claim lacked good faith and probable cause to contest the Will. The evidence was overwhelming that Rex wished to enforce harmony among his heirs and to punish any heir who disobeyed his wishes through disinheritance. Therefore, the Final Report is Approved and the objection of Kathy is DENIED.

Kathy appealed, and we retained the case.2

II. Standard of Review.

Kathy does not appeal from the judgment on the jury verdict rejecting her

will contest claims. Rather, she appeals from the district court ruling denying

her objections to Karen’s final report on Rex’s estate. We review that ruling

de novo.3 In re Est. of Roehlke, 231 N.W.2d 26, 27 (Iowa 1975) (“A hearing on

objections to a fiduciary’s final report is an equitable proceeding. [Iowa Code]

§ 633.33. Our review is de novo.” (citation omitted)). “In a de novo review, the

appellate court examines the facts as well as the law and decides the issues

2Kenneth did not join Kathy’s appeal.

3Kathy’s brief argues that our standard of review is de novo. The opposing brief does not

contest that assertion. 8

anew.” Brede v. Koop, 706 N.W.2d 824, 826 (Iowa 2005). “Although we give

deference to the trial court’s findings of fact, we are not bound by them.” In re

Est. of Roehlke, 231 N.W.2d at 27.

III. Analysis.

Courts adjudicating no-contest or penalty clauses have recognized

competing public policies. “Public policy reasons to support penalty clauses

include preserving the transferor’s donative intent, avoiding waste of the estate

in litigation, and avoiding use of a will contest to coerce a more favorable

settlement to a dissatisfied beneficiary.” Rodriguez v. Gavette (In re Est. of

Shumway), 9 P.3d 1062, 1065 (Ariz. 2000) (en banc). A countervailing public

interest favors “allowing access to the courts to prevent probate of wills procured

by or resulting from fraud, undue influence, lack of capacity, improper

execution, forgery, or subsequent revocation by a later document.” Id. “Penalty

clauses work a forfeiture, which is disfavored in the law.” Id. at 1067. The tension

between these competing policies is reflected in the development of Iowa

precedent.

Iowa courts have long enforced no-contest clauses. See generally Moran v.

Moran, 123 N.W. 202 (Iowa 1909) (enforcing a no-contest clause), overruled by,

Cocklin v. Watkins (In re Cocklin’s Est.), 17 N.W.2d 129 (Iowa 1945). Originally,

Iowa courts enforced the clauses mechanically, automatically disinheriting the

challenger regardless of good faith. See, e.g., id. at 206. But the dissent in

Moran v. Moran colorfully argued that a no-contest clause, like a “roaring lion,”

can impede the probate court’s search for truth by frightening off would-be

challengers who reasonably believe a will is invalid:

Under the law no will can become effective in any of its provisions until it shall have been admitted to probate by the court. Before admitting it to probate, it is the duty of the court to investigate the facts and circumstances attending its execution and bearing upon 9

its validity, and to find judicially therefrom that such will was executed in due form, voluntarily, and understandingly by the purported testator. If the court should find otherwise, it must reject the will and refuse its probate. This duty is often, perhaps usually, performed in a formal and perfunctory manner. But the duty itself is more than formal. It is substantial and imperative and as sincere and solemn as any other judicial investigation and determination. Manifestly, in order to attain true judicial results, the court has need to learn true facts. These must come, if at all, from those who are or were in a position to know them. In obedience to the law a day of hearing is fixed, and notice thereof is published to the world. If the court is to learn the truth from outside sources of information, it is manifestly important that the highway of information to the court be kept open, and that there shall be no lion in the way. But here is a forfeiture provision in the purported will itself which may be a roaring lion intended to terrorize every beneficiary of the will. Its demand is that no adverse evidence be volunteered. Its tendency is necessarily to suppress material facts, and thus to impede the administration of the law according to its true spirit. A good faith contest of a will is in strict line and in strict consistency with the duty of judicial investigation and determination imposed on the court by the law.

Id. at 208–09 (Evans, C.J. dissenting) (emphasis added). Chief Justice Evans’s

reasoning set the stage to overrule Moran several decades later.

In Cocklin v. Watkins (In re Cocklin’s Estate), we quoted Chief Justice

Evans’s dissent at length, surveyed precedent in other states, and overruled

Moran. Cocklin, 17 N.W.2d at 132–35. We recognized a safe harbor for

beneficiaries who challenged a will “in good faith and for probable cause.” Id.

at 135. We did not, in Cocklin, define either good faith or probable cause, but we

found that both were present in the case, relying on three factors: (1) that the

challengers acted upon the advice of counsel, (2) that the trial judge submitted

questions of testamentary capacity and undue influence to the jury, and (3) that

the jury deliberated for about thirty-five hours before reaching a verdict. Id. at

136. 10

We refined our approach five years later in Geisinger v. Geisinger, 41

N.W.2d 86 (Iowa 1950). In Geisinger, we affirmed the district court’s fact-

intensive determination that the contesting beneficiaries acted in good faith and

with probable cause when they challenged a will that had a no-contest clause.

Id. at 93. We looked to analogous probable cause determinations in civil

malicious prosecution actions, and adopted the definition of probable cause used

in section 675 of the Restatement (First) of Torts, which provided:

One has probable cause for initiating civil proceedings against another if he reasonably believes in the existence of facts upon which his claim is based and reasonably believes that under such facts the claim may be valid at common law or under an existing statute, or so believes in reliance upon the advice of counsel received and acted upon as stated in the foregoing authorities.

Geisinger, 41 N.W.2d at 93 (quoting Restatement (First) of Torts § 675, at 446

(A.L.I. 1938)). But we did not further elaborate on the test that courts or

practitioners should apply when evaluating a challenge to a will with a no-

contest clause. And our court has not revisited the good faith and probable cause

requirement since Geisinger seventy-five years ago.

The most recent elaboration of this area of Iowa law came in an

unpublished decision by our court of appeals, Estate of Workman v. Workman,

No. 16–0908, 2017 WL 706342 (Iowa Ct. App. Feb. 22, 2017).4 The parties’ briefs

in this appeal focus on this nonprecedential decision. In Workman, the court of

appeals reviewed the district court’s enforcement of a no-contest clause. Id. at *1.

The panel’s analysis surveyed cases and commentators nationally to distill

factors for determining whether the challenger satisfied the good faith and

4That appellate decision is one of a series of cases involving the Workman legacy. See Est.

of Workman v. Workman, 903 N.W.2d 170 (Iowa 2017); Est. of Workman v. Workman, No. 17– 0599, 2018 WL 4360894 (Iowa Ct. App. Sept. 12, 2018) (per curiam); Workman v. Iowa Dist. Ct., No. 17–1038, 2018 WL 3302361 (Iowa Ct. App. July 5, 2018). 11

probable cause requirement, including: (1) whether the challenger relied on the

well-informed advice of legal counsel, (2) whether the challenger understood the

testator’s intentions, (3) whether the testator’s conduct following execution of the

will was consistent with the stated intentions, (4) whether the testator’s mental

capacity made the testator susceptible to suggestion, and (5) whether the district

court submitted a jury question as to the will contest, and, if so, how long the

jury deliberated before reaching a verdict. Id. at *2. The court of appeals

emphasized the well-informed advice of counsel as a key factor and attempted to

reconcile the two jury-based factors, stating,

The final two factors—whether there is a jury question and the length of deliberation—could be read as requiring proof of the underlying claim. These factors seem at odds with the Restatement’s prescription to examine the facts at the time the will contest action is filed. See Wilson [v. Dallas], 743 S.E.2d [746,] 760 [(S.C. 2013)] (stating “proof of a claim is not required”); Restatement (Third) of Property: Wills and Donative Transfers § 8.5 cmt. c. On closer examination, we believe these factors bear on whether a challenger’s subjective belief that he or she is filing a will contest in good faith is objectively reasonable. For example, if a challenger introduces no evidence of undue influence, the challenger’s belief in the viability of the action at the time it was filed could be deemed unreasonable. Conversely, if the challenger introduces overwhelming evidence of undue influence, the challenger’s belief could be deemed reasonable. These factors comport with an objective good-faith standard. See Wilson, 743 S.E.2d at 760 (“The question is not whether there was in fact undue influence, but whether the parties could in good faith reasonably believe so. . . . [S]omething more than a subjective belief or a mere allegation is necessary. . . .”).

Workman, 2017 WL 706342, at *3 (fourth alteration and omissions in original).

Applying the factors to the case, the panel affirmed the district court’s summary

judgment order enforcing the no-contest clause and disinheriting the challenger.

Id. at *4–6. The court noted that the challenger offered no evidence that he relied

on the advice of counsel. Id. at *4. A dissenting judge concluded that the

challenger established his good faith and probable cause to avoid forfeiture. Id. 12

at *7–8 (Potterfield, J., dissenting). Although Workman and our precedent

considered the length of jury deliberations in the will contest, we caution against

giving weight to this variable, which could change based on the complexity of the

case or simply because of a stubborn holdout.

The parties in this appeal urge us to clarify Iowa’s good faith and probable

cause standards. We retained this case to do so through a precedential opinion.

In considering how to clarify Iowa law, we take a fresh look at the state of

the law in other jurisdictions since Geisinger was decided seventy-five years ago.

Across our nation today, there are three basic approaches to no-contest

clauses: (1) rigorous enforcement, (2) void as a matter of policy, and

(3) enforceable unless challenged for probable cause (with an additional good

faith requirement in some jurisdictions, including Iowa).

The first position relies on the principle that, if the testator had the

forethought to place a no-contest clause in the will, then the courts should honor

that intent. See, e.g., Finkle-Rowlett Revocable Tr. Dated August 28, 2009 v.

Stiens, 558 S.W.3d 95, 99–100 (Mo. Ct. App. 2018) (emphasizing that “no-contest

clauses are ‘to be [strictly] enforced [according to their terms] upon violation

without regard to any exception based upon the good faith and probable cause

of the contestant’ ” (alterations in original) (quoting Cox v. Fisher, 322 S.W.2d

910, 913 (Mo. 1959))); EGW v. First Fed. Savs. Bank of Sheridan, 413 P.3d 106,

110 (Wyo. 2018). See generally Martin D. Begleiter, Anti-Contest Clauses: When

You Care Enough to Send the Final Threat, 26 Ariz. St. L.J. 629, 679 (1994)

[hereinafter Begleiter] (defending a rigorous enforcement view). Iowa, too,

originally took the rigorous enforcement position. See Moran, 123 N.W. at 206.

The second position, operating on the theory that the testator cannot close

the courthouse door to those seeking to vindicate their legal rights, annuls any

testamentary clause purporting to disinherit contesting beneficiaries. The 13

Florida legislature has codified this view. See Fla. Stat. § 732.517 (2021) (“A

provision in a will purporting to penalize any interested person for contesting the

will or instituting other proceedings relating to the estate is unenforceable.”)

Carving out a middle ground, states that have adopted the third position

enforce no-contest clauses unless the challenge to the will is supported by

probable cause. This view enjoys wide support. See, e.g., Salce v. Cardello, 301

A.3d 1031, 1050–51 (Conn. 2023) (D’Auria, J., dissenting) (identifying

twenty-two states following the Uniform Probate Code approach under which

no-contest clauses are unenforceable when probable cause supports the will

contest); see also, Cal. Prob. Code § 21311 (2021); Tex. Est. Code § 254.005

(2021); Unif. Prob. Code § 2-517 (amended 2019) (“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 proceedings.”); 2 Restatement (Third) of Prop. § 8.5, at 194 (“A

provision in a donative document purporting to rescind a donative transfer to,

or a fiduciary appointment of, any person who institutes a proceeding

challenging the validity of all or part of the donative document is enforceable

unless probable cause existed for instituting the proceeding.”). The Restatement

(Third) of Property considers the challenger’s good faith as a factor. 2

Restatement (Third) of Prop. § 8.5 cmt. c, at 195 (“A factor that bears on the

existence of probable cause is whether the beneficiary relied upon the advice of

independent legal counsel sought in good faith after a full disclosure of the

facts.”). And some courts expressly require proof of the challenger’s good faith in

addition to probable cause. See, e.g., Rodriguez, 9 P.3d at 1066. Iowa has long

required proof of both good faith and probable cause. Geisinger, 41 N.W.2d at 93.

Against that backdrop, we revisit and clarify the good faith and probable

cause requirements for avoiding enforcement of a no-contest clause under Iowa 14

law. The purpose of probate is to ascertain and execute the testator’s true intent.

No-contest clauses, by their very nature, are a roaring lion, prowling before the

courthouse doors, warding away potential challengers. See Moran, 123 N.W.

at 208 (Evans, C.J. dissenting). Sometimes, the threat is salutary; it may prevent

obstreperous beneficiaries from wasting the estate’s substance on frivolous

litigation. But at other times, a beneficiary with a genuine claim, daunted by

potential disinheritance, will forgo a challenge. Our approach keeps the lion on

a leash—maintaining the menace of the no-contest clause, while simultaneously

permitting good faith challengers with probable cause to litigate the validity of

the will without disinheritance.

We now resolve a threshold issue. Our court’s precedent is silent on who

bears the burden of proof. The court of appeals appropriately placed the burden

on the challenger. Workman, 2017 WL 706342, at *6 (“On our de novo review,

we conclude Dennis failed to establish probable cause and good faith for the

filing of his will contest action.”). Other courts are divided. Compare Key v. Tyler,

246 Cal. Rptr. 3d 224, 233–34 (Ct. App. 2019) (applying California statutory

provisions to hold a plaintiff seeking to enforce a no-contest clause has the

burden to prove the challenger lacked probable cause to contest the term of a

trust), with Gunter v. Pogue, 672 S.W.2d 840, 844 (Tex. Ct. App. 1984) (party

seeking to defeat a no-contest clause has “the burden to show that their will

contest was brought in good faith and upon probable cause”). The Restatement

(Third) of Property takes the majority view that places the burden on the party

challenging the will. See 2 Restatement (Third) of Prop. § 8.5 cmt. b, at 195

(enforcing the no-contest clause unless the challenger “can establish that there

was probable cause for instituting the proceeding. When the contestant

establishes that there was probable cause . . . it would be a contravention of 15

public policy to enforce the no-contest clause”). Counsel for Kathy acknowledged

at oral argument that she had the burden of proof.

We agree with the Restatement (Third) of Property’s placement of the

burden on the challenger, because the challenger is best positioned to explain

what information was relied on to contest the will. Placing the burden on the

challenger imparts presumptive validity to the no-contest clause, gives the

challenger an opportunity to contest a potentially invalid will, and keeps the

burden of proof consistent with general principles of Iowa law. See Iowa R. App.

P. 6.904(3)(e) (“Ordinarily, the burden of proof on an issue is upon the party who

would suffer loss if the issue were not established.”), applied in In re A.S., 906

N.W.2d 467, 475–76 (Iowa 2018). We hold that the party seeking to avoid the

no-contest clause (Kathy) bears the burden of proving by a preponderance of the

evidence that the challenge to the will was brought in good faith and supported

by probable cause. “The determination of good faith and probable cause should

be inferred from the totality of the circumstances.” Parker v. Benoist, 160 So. 3d

198, 206 (Miss. 2015) (applying section 8.5 comment c of the Restatement (Third)

of Property); see also In re Est. of Seymour, 600 P.2d 274, 278 (N.M. 1979) (“The

court should infer the existence or absence of good faith and probable cause

from the totality of the circumstances.”)

We address the tests for good faith and probable cause in turn.

A. Good Faith. As noted above, we have enforced no-contest clauses

unless the challenge was brought in good faith and for probable cause. We have

not defined good faith in this context, nor have we explained its relationship with

probable cause.

Authorities are divided on whether and how courts should apply the good

faith standard. Some use an objective good faith standard. See generally Holt v.

Holt, 282 S.E.2d 784 (N.C. 1981) (employing an analysis that asks whether there 16

was a bona fide dispute over the will). Others consider the challenger’s subjective

beliefs. See Rodriguez, 9 P.3d at 1066 (“While we agree that good faith is not the

sole test, we believe subjective belief in the basis of the challenge is part of the

required belief in the substantial likelihood of success.”); Winningham v.

Winningham, 966 S.W.2d 48, 52 (Tenn. 1998) (“As soon as the attorney advised

the defendant of his error, the petition was withdrawn. The plaintiff presented

no evidence of bad faith. Filing the suit was not ‘a mere vexatious act’ but was

based on honest conviction.”). Yet others do not consider good faith at all. See,

e.g., Donkin v. Donkin, 314 P.3d 780, 792 (Cal. 2013) (recognizing that, under

California law, probable cause determines the enforcement of a no-contest

clause). Here, the parties agree that under Iowa law, the challenger must prove

both good faith and probable cause to avoid a no-contest clause.

Under Iowa law, good faith may be viewed objectively or subjectively

depending on the context. Sieg Co. v. Kelly, 568 N.W.2d 794, 804–05 (Iowa 1997)

(surveying Iowa cases and statutes and observing that “[t]he term ‘good faith’ has

various meanings; sometimes it is viewed objectively and at other times,

subjectively”). For example, we apply a purely subjective standard for

determining good faith under Iowa Code section 232.73 (2021), which provides

immunity for reporting child abuse. See Nelson v. Lindaman, 867 N.W.2d 1, 8–

10 (Iowa 2015). When a party must show both good faith and proof of the

objective reasonableness of their conduct, a subjective standard for good faith

should be used, otherwise, the term would be redundant. Sieg Co., 568 N.W.2d

at 805. Because both good faith and probable cause must be shown to avoid

forfeiture under the no-contest clause, and because probable cause is an

objective test, we hold that a purely subjective standard applies to determine the

challenger’s good faith. See Rodriguez, 9 P.3d at 1066–67 (requiring challenger

to show subjective good faith and probable cause viewed objectively). 17

Determining a will contestant’s good or bad faith is important because

no-contest clauses are intended to promote familial harmony and to protect

estate assets by avoiding emotionally and financially taxing litigation. Lawsuits

born of acrimony and bad faith are, therefore, the main evil no-contest clauses

seek to avoid. Evidence that will contestants honestly believed in their case and

had no intent to bleed out estate funds or those of other potential beneficiaries

cuts in favor of avoiding forfeiture.

We conclude that will contestants must prove their subjective good faith

to avoid enforcement of a no-contest clause. The contestants must also prove

their challenge was supported by probable cause. We address that requirement

next.

B. Probable Cause. In Geisinger, we adopted the Restatement (First) of

Torts definition of probable cause. 41 N.W.2d at 93. This approach has been

criticized as placing undue emphasis on the advice of counsel. See Begleiter, 26

Ariz. St. L.J. at 679. A pertinacious beneficiary can often find an attorney to

champion the beneficiary’s cause, even if the challenge is a long shot. See id. The

emphasis the Restatement (First) of Torts places on advice of counsel also puts

pro se will contestants on the back foot. But see Kubik v. Burk, 540 N.W.2d 60,

63 (Iowa Ct. App. 1995) (“We do not utilize a deferential standard when persons

choose to represent themselves. The law does not judge by two standards, one

for lawyers and another for lay persons. Rather, all are expected to act with equal

competence. If lay persons choose to proceed pro se, they do so at their own

risk.” (citations omitted)).

In our view, a better definition is found in the Restatement (Third) of

Property, which defines probable cause in the specific context of will contests as

follows: 18

Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful. A factor that bears on the existence of probable cause is whether the beneficiary relied upon the advice of independent legal counsel sought in good faith after a full disclosure of the facts. The mere fact that the person mounting the challenge was represented by counsel is not controlling, however, since the institution of a legal proceeding challenging a donative transfer normally involves representation by legal counsel.

2 Restatement (Third) of Prop. § 8.5 cmt. c, at 195. We hereby adopt this

definition of probable cause for will contests. We decline to enumerate a list of

specific factors to be checked off in every case; rather, courts should examine

the totality of circumstances.5

C. Did Kathy Meet Her Burden to Prove Her Good Faith and Probable

Cause? On our de novo review, we must determine whether Kathy proved that

she acted in good faith and with probable cause when she challenged Rex’s will.

We find that she failed to meet her burden of proof.

Importantly, the experienced district court judge who presided over the

jury trial and heard the live testimony of the witnesses, including Kathy,

expressly found that Kathy “lacked good faith and probable cause to contest the

Will.” We are reviewing the testimony on a cold transcript, and we give deference

to that factual finding by the district court. In re Est. of Roehlke, 231 N.W.2d at

5The dissenting opinion does not disagree with our foregoing clarification of Iowa law on

the burden of proof, good faith, and probable cause, but rather disagrees with our application of law to the facts on this record. The opinion concurring in the judgment would affirm under a strict enforcement approach to no-contest clauses but agrees that Kathy should be disinherited under our clarified standards for good faith and probable cause. So, four justices affirm the district court. Under our de novo review, we need not remand to the district court for a new hearing on Kathy’s objections to the final report, but rather we apply the clarified standard ourselves. See Brede, 706 N.W.2d at 826. 19

27.6 It matters not that the court denied Karen’s motion for directed verdict,

because we encourage district courts to apply the “Uhlenhopp rule.” See State v.

Keding, 553 N.W.2d 305, 308 (Iowa 1996) (approving the Uhlenhopp rule, “which

encourages the district court to deny a motion for directed verdict” and “submit

the case to the jury to avoid another trial in case of error”).

The evidence at the jury trial showed Rex’s health challenges, including

mild dementia, Karen’s ill-will towards Kathy, Karen’s position of influence over

Rex, and his death within three weeks of changing his will. But the evidence also

showed that Rex’s personal attorney took steps to ensure Rex was competent

when he made those changes, including having him evaluated by his family

doctor, who determined he was mentally competent at the time he wrote his final

will. Coakley also testified that Rex made frequent changes to his will over the

years—a fact Kathy knew since she often took Rex to Coakley’s office and had

expressed her displeasure to Rex about the trust arrangement for her share.

What is more, Coakley, in response to Kathy’s objection to the final report on

Rex’s estate, noted that Rex had included a no-contest clause in prior versions

of his will, a fact that undercuts her claim that Rex only inserted the no-contest

clause in his final will at Karen’s behest.

It was not Karen’s burden to prove Kathy lacked good faith or probable

cause to challenge Rex’s will. Rather, it was Kathy’s burden to prove that she

acted in good faith and with probable cause. Yet, when given the chance to

present evidence supporting her good faith, Kathy presented nothing beyond her

attorney’s professional statement that he would file the will contest again. Kathy

offered no other evidence at the hearing on her objections to the final report.

6The district court’s findings were conclusory. We encourage trial judges to explain in

detail the evidence supporting their findings, especially those as to a party’s credibility or state of mind. 20

That hearing was her “put up or shut up moment.” Slaughter v. Des Moines Univ.

Coll. of Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019) (quoting Hammel v.

Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). This record lacks

critical evidence to show Kathy’s good faith and probable cause, such as:

• Any testimony or documentary evidence of the facts Kathy provided to

her counsel or of the advice Kathy received from her counsel before

filing her will contest, much less a legal opinion that there was a

substantial likelihood her will contest would succeed, or of her reliance

on that advice. In fact, neither Kathy nor her counsel testified about his

advice to her.7

• Examples of Kathy’s presuit investigation, which presumably would

have revealed Dr. Thompson’s cognitive testing and opinion that Rex

had the mental capacity to execute his final will. Coakley, Rex’s

attorney, obtained that medical opinion to deter and defeat a will

contest and no doubt would have disclosed the medical opinion of Rex’s

treating physician before a lawsuit if only Kathy had asked him.

• Rex’s prior wills, which allegedly treated Kathy more favorably. None

were introduced into evidence as exhibits at the jury trial or during the

hearing on Kathy’s objections to the final report. She testified that she

did not have the prior wills, but she presumably could have obtained

them from Coakley (by subpoena if necessary).

7Reliance on advice of counsel can waive the attorney–client privilege for communications

on the subject matter of the advice and makes the attorney a witness. See, e.g., Peterzalek v. Iowa Dist. Ct., 7 N.W.3d 37, 47–48 (Iowa 2024); Squealer Feeds v. Pickering, 530 N.W.2d 678, 684–85 (Iowa 1995) (en banc), overruled on other grounds by, Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004). Depending on the strength of the underlying facts supporting a will challenge, that may be the price unsuccessful will contestants must pay to avoid forfeiting their inheritance under a no-contest clause. 21

Kathy’s counsel, arguing that Kathy had probable cause for her suit, relies

on his proffered professional statement, made after the jury trial, that he would

bring the will contest again based on the same evidence. We accept his statement

at face value. But neither Kathy nor her counsel revealed what investigation they

made, what underlying facts Kathy shared, or what legal advice she received

before filing the will contest. They simply note that both Kathy and her attorney

signed the petition that commenced her will contest, and then rely on the

certification of good faith under Iowa Rule of Civil Procedure 1.413(1), which

provides in relevant part,

Counsel’s signature to every motion, pleading, or other paper shall be deemed a certificate that: counsel has read the motion, pleading, or other paper; that to the best of counsel’s knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation. . . . The signature of a party shall impose a similar obligation on such party.

Certification under rule 1.413, however, falls short of showing that Kathy’s

counsel advised her that there was a substantial likelihood her will contest would

succeed based on an accurate understanding of the facts. That is the type of

advice from counsel that helps establish probable cause in this context. See 2

Restatement (Third) of Prop. § 8.5 cmt. c, at 195; see also Workman, 2017

WL 706342, at *4 (affirming summary judgment enforcing no-contest clause

when challenger offered no evidence that he relied on advice of counsel); cf.

Rodriguez, 9 P.3d at 1067 (finding probable cause based on an “important factor”

that the challenger, before filing suit, obtained advice of counsel supporting her

challenge along with the treating physician’s written opinion that the blind

testator “was ‘borderline competent’ during the last week of his life, that he 22

showed ‘marked deterioration,’ was ‘waxing and waning,’ and that by June 30

(four days after the will was signed), he ‘clearly was incompetent’ ”).

What the record shows, quite clearly, is that Rex was well aware of the

acrimony between Kathy and Karen and, as the district court expressly found,

Rex included the no-contest clause “to enforce harmony among his heirs and to

punish any heir who disobeyed his wishes through disinheritance.” We reach the

same conclusion. The testator’s intent is our polestar. Therefore, we enforce the

no-contest clause to effectuate Rex’s intent.

IV. Disposition.

For the foregoing reasons, we affirm the district court order overruling

Kathy’s objections to the final report.

Affirmed.

Oxley, J., joins this opinion. May, J., files an opinion concurring in the

judgment, in which McDonald, J., joins. McDermott, J., files a dissenting

opinion, in which Christensen, C.J., joins. Mansfield, J., takes no part. 23

#24–1053, Estate of Felten

May, Justice (concurring in the judgment).

I appreciate my colleagues’ efforts on this case. The plurality is correct to

affirm the district court’s enforcement of the no-contest clause in Rex’s will. I

respectfully concur in the judgment. I write separately to mention two things.

I. The Narrow Issues Before Us.

First, it is worth emphasizing that this case does not present the question

of whether Iowa should retain or abandon the good-faith-and-probable-cause

exception to our general rule of enforcing no-contest clauses. That exception has

been part of our law since 1945, when our court decided Cocklin v. Watkins (In

re Cocklin’s Estate), 17 N.W.2d 129 (Iowa 1945). Neither party to this appeal has

asked us to reconsider Cocklin. Indeed, both parties assume that Cocklin and its

exception are valid. Their only disputes are about the scope of the exception:

What is required for the exception to apply and, ultimately, does it apply here?

The plurality opinion properly resolves those disputes under our existing law.

II. Thoughts for the Future.

Second, if future parties in a future case were to ask us to abandon the

exception, there would be good reasons to consider granting that request and

going back to our pre-Cocklin rule, under which no-contest clauses were

categorically enforceable. See Moran v. Moran, 123 N.W. 202, 206 (Iowa 1909),

overruled by, Cocklin, 17 N.W.2d 129. Although the plurality and the dissent say

that no-contest clauses are like a “lion” that must be “on a leash” (per the

plurality) or maybe even caged (as the dissent implies) through Cocklin’s

exception, I am not so sure. Indeed, if any lion metaphor is appropriate, maybe

the best comparator is Aslan, the benevolent lion of Narnia. C.S. Lewis, The Lion,

the Witch and the Wardrobe 78–80 (HarperCollins 1994) (1950). After all, 24

no-contest clauses protect important purposes—the most important of which is

the testator’s intention that anyone who chooses to contest the testator’s will

shall not receive benefits of that will. See Martin D. Begleiter, Anti-contest

Clauses: When You Care Enough to Send the Final Threat, 26 Ariz. St. L.J. 629,

632–34 (1994) [hereinafter Begleiter]. So maybe there is no need for a leash or

cage. Maybe those clauses should just be enforced as written and, ordinarily,

without extra litigation about whether the will challenger had good faith,

probable cause, etc. See id. at 634.

We all agree, after all, that when there is litigation about a will, the court’s

chief function is to carry out the intent of the testator as expressed in the will.

See, e.g., Roll v. Newhall, 888 N.W.2d 422, 426 (Iowa 2016) (noting that the

intent of the testator as expressed in the will’s language “is the polestar and must

prevail” (quoting Lawrence J. Rodgers Tr. v. Rogers (In re Est. of Rogers), 473

N.W.2d 36, 39 (Iowa 1991))). This approach fits with the usual economic freedom

enjoyed by Iowans: just as we have broad control over the disposition of our

property during our corporeal lives, enforcement of wills gives us control over

how our property will be divided when our bodies fail.

This testamentary freedom includes the freedom to place conditions on the

gifts that are given through wills. In re Est. of Roberts, 171 N.W.2d 269, 271 (Iowa

1969) (“[A] testator may provide under what conditions certain devises and gifts

will pass and become effective” (quoting In re Pottorff’s Est., 250 N.W. 463, 465

(Iowa 1933))). And so, ordinarily, a beneficiary can receive a gift under a will “only

under the conditions imposed by the testator” through the will’s language.

Begleiter, 26 Ariz. St. L.J. at 634.

No-contest clauses are one of these conditions. The will offers a gift, but it

imposes a condition: the recipient must not bite the will that feeds them, so to

speak, by challenging the will. See No-Contest Clause, Black’s Law Dictionary 25

1254 (12th ed. 2024) (“[A] testamentary provision that threatens to dispossess

any beneficiary who challenges the terms of the will.”). It seems like that

condition ought to be enforced as written, as with other conditions. But see

Begleiter, 26 Ariz. St. L.J. at 650–55 (acknowledging some special cases in which

nonenforcement may be appropriate).

To be clear, though, if there were a successful challenge to a will, any

no-contest clause in the will would be declared invalid along with the will itself.

Id. at 645–46. For instance, if the jury had agreed with Kathy that there had

been a fatal defect in Rex’s will—such as a lack of testamentary capacity—then

the will would be considered invalid, and its no-contest clause would have no

effect. See id.

But that is not what happened here. Instead, the jury rejected all of the

challenges to Rex’s will. And so, as things stand now, we must consider the will

to be a valid statement of Rex’s true intent. And if that is the case, then why

shouldn’t we give full effect to the will as written, including its no-contest clause?

Why should the parties and the courts expend more time and energy to decide

whether Kathy had good faith or probable cause to mount her unsuccessful

challenge? I struggle to see a reason.

It is true, of course, that although “the testator has the legal right to make

any distribution of his property he may elect,” that right is limited to

distributions that are not “contrary to law or public policy.” In re Pottorff’s Est.,

250 N.W. at 465. Yet, unlike in some states, Iowa’s legislature has not chosen to

prohibit or even limit the enforcement of no-contest clauses. Begleiter, 26 Ariz.

St. L.J. at 640–41, 640 n. 75 (citing Ind. Code § 29-1-6-2 (1992); Fla. Stat.

§ 732.517 (1976)). 26

That leaves only the question of whether public policy is offended by giving

effect to the testator’s written choice as expressed in the no-contest clause. In re

Est. of Roberts, 171 N.W.2d at 271. I am not convinced that it is.

Ordinarily, we leave public policy issues to the people’s democratically

elected lawmakers in the general assembly. See, e.g., Brodie v. Foxhoven, 21

N.W.3d 380, 390 (Iowa 2025) (“The legislature is the branch of government

responsible for advancing public policy.” (quoting Koester v. Eyerly-Ball Cmty.

Mental Health Servs., 14 N.W.3d 723, 731 (Iowa 2024))). Conversely, “the power

of the courts to declare a contract or provision of a will in contravention of sound

public policy is quite limited.” In re Est. of Barnes, 128 N.W.2d 188, 192 (Iowa

1964), amended, 130 N.W.2d 227 (Iowa 1964). “It is akin to the power of the

court to declare a statute unconstitutional and should be exercised only in cases

free from doubt.” Id.; accord P.M. v. T.B., 907 N.W.2d 522, 537–38 (Iowa 2018)

(“The power to invalidate a contract on public policy grounds must be used

cautiously and exercised only in cases free from doubt.” (quoting Thomas v.

Progressive Cas. Ins., 749 N.W.2d 678, 687 (Iowa 2008))).

I don’t think it’s “free from doubt” that automatic enforcement of

no-contest clauses is contrary to public policy. Indeed, as I’ll discuss more below,

the most powerful public policy considerations support that enforcement. See

Begleiter, 26 Ariz. St. L.J. at 632.

I understand my colleagues’ concern that—like a lion—a no-contest clause

might scare challengers away from the courthouse doors. See id. at 644. As

already explained, though, a no-contest clause doesn’t actually prohibit anyone

from going to court. With or without the clause, any beneficiary is free to

challenge the will, as Kathy did. See id. at 644–45.

Rather, the clause’s effect is simply to alter the mix of possible costs and

benefits of litigation. With or without a no-contest clause, a potential 27

will-challenger must consider “a number of negative factors” that go along with

litigation, including “costs, attorney’s fees and counterclaims.” Id. at 645. And,

as Professor Begleiter reminds us, the potential loss of “the beneficiary’s bequest

under the no-contest clause is simply another factor that the beneficiary must

consider in determining whether to challenge the will. It is no more a burden

than any other cost of a legal action.” Id. Surely, it is no more a burden than

fee-shifting provisions in ordinary contracts. Under those provisions, a party that

loses a contract case is not only deprived of whatever relief the party sought in

the case but is also saddled with paying the other side’s attorney fees (not to

mention that party’s own attorney fees). If that’s not the sort of lion that will

scare people away from the courthouse, I don’t know what is. And yet, when a

fee-shifting provision is clear and unambiguous, Iowa law requires its

enforcement. See NevadaCare, Inc. v. Dep’t of Hum. Servs., 783 N.W.2d 459, 471–

72 (Iowa 2010). I’m not sure why no-contest clauses should be treated differently.

So it seems that no strong public policy interest is offended by automatic

enforcement of no-contest clauses. Conversely, powerful public policy reasons

favor automatic enforcement. The strongest, of course, is the importance of

honoring the testator’s intent. See Roll, 888 N.W.2d at 426. As Professor Begleiter

has explained, though, there are at least three other interests worth considering.

First, although will contests are “rarely successful,” they still tend to

deplete the estate through litigation costs. Begleiter, 26 Ariz. St. L.J. at 635. This

can easily involve tens of thousands of estate dollars. Those dollars will not go

to the people whom the testator wanted to benefit. Instead, those dollars will go

to the one thing that the testator expressly did not want: a contest over the will.

Moreover—and at the risk of great understatement—a will contest can

“generate family animosity” among the contestants. Id. at 636. Many reasonable

parents can understand the benefit of deterring such contests. 28

Finally, as this case demonstrates, a will contest deprives the testator and

their family of privacy. Id. After all, if there is no will contest, the world might

never learn about a family’s inner turmoil or the testator’s personal health

issues. But if there is a will contest, those private matters will be examined in a

very public way—all at a time when the testator is in no position to respond. Id.

Those matters may even be the topic of lengthy appellate court opinions that are

posted on the internet—as is happening in this case. Indeed, if you’ve read this

far in my opinion, then you’ve probably also read the plurality’s reporting about

Rex’s children and their vehement conflicts, including Karen’s accusations that

Kathy engaged in “Financial Elder Abuse.” You’ve probably also read about the

many indignities of Rex’s decline. His struggle to care for himself. His need for

his daughter to assist him with feeding and bathing. His continence issues. His

paranoia. His dementia. And so on.

Yet these unfortunate disclosures might well have been avoided if the no-

contest clause had succeeded in deterring this litigation. This again suggests

that no-contest clauses should be enforced uniformly—and not just in cases

where the plaintiff lacks good faith and probable cause. The lion needs to be as

scary as it can.

III. Conclusion.

For now, Cocklin’s good-faith-and-probable-cause exception remains a

part of Iowa law. This case provides no opportunity to reconsider it. But if that

opportunity should arise, there would be good reasons to think again. I

respectfully concur in the judgment.

McDonald, J., joins this concurrence in the judgment. 29

#24–1053, In re Estate of Felten

McDermott, Justice (dissenting).

The plurality recites Chief Justice Evans’s description of no-contest

clauses as a metaphorical “roaring lion” that impedes the court’s search for truth

by frightening off would-be challengers with valid claims. The plurality asserts

that in counterbalance, the good faith and probable cause exception preventing

enforcement of no-contest clauses “keeps the lion on a leash.” But the court

provides no comfort when, by minimizing weighty evidence of probable cause

supporting the will contest in this case, the court fashions a leash so long that

the roaring lion can patrol the courthouse steps with free rein. In my view, Kathy

more than established that when she filed her petition to contest the July 2021

will, she acted in good faith and with probable cause. Because we have long

refused to enforce no-contest clauses in these situations, and should do so here,

I respectfully dissent.

The law favors carrying out a testator’s intent concerning the disposition

of their property as expressed in a will. Am. Nat’l Red Cross v. White (In re J.O.

McDonough Tr.), 109 N.W.2d 29, 35 (Iowa 1961). Our cases treat no-contest

clauses as valid exercises of a testator’s wishes. Geisinger v. Geisinger, 41

N.W.2d 86, 93 (Iowa 1950). Among other beneficial purposes, no-contest clauses

may avoid litigation among the will’s beneficiaries that could dissipate the

estate’s assets, deter frivolous challenges by someone disappointed by the will’s

terms, or prevent a beneficiary from receiving (through settlement or otherwise)

assets beyond what the testator wished. See 2 Restatement (Third) of Prop.: Wills

& Other Donative Transfers § 8.5 cmt. b, at 194–95 (A.L.I. 2003) [hereinafter

Restatement (Third) of Prop.].

Yet no-contest clauses are not sacrosanct. We have repeatedly recognized

that in some cases, a will’s terms should not be enforced because of an 30

impropriety in how the will was formed, such as when a testator lacks capacity

to create a will or a testator falls victim to the undue influence of another. See,

e.g., Todd v. Todd (In re Est. of Todd), 585 N.W.2d 273, 276–78 (Iowa 1998)

(affirming judgment setting aside a will based on undue influence); First Sec.

Bank & Tr. Co. v. Christianson (In re Est. Dankbar), 430 N.W.2d 124, 131–32

(Iowa 1988) (same); Helgeson v. Henderson (In re Est. of Herm), 284 N.W.2d 191,

200–01 (Iowa 1979) (same); Paschal v. Waudby (In re Est. of Ramsey), 105

N.W.2d 657, 659–60 (Iowa 1960) (same). When this happens, it can’t be said that

enforcing the will carries out the testator’s wishes; enforcing the will instead

fulfills the wishes of an unscrupulous beneficiary who took advantage of the

testator.

Our court’s aim has thus been to find a middle ground between enforcing

no-contest clauses and ensuring beneficiaries are not deterred from bringing

meritorious will contests by the threat of disinheritance. We do so by refusing to

enforce no-contest clauses when challengers show that they brought the claim

in good faith and with probable cause. See Geisinger, 41 N.W.2d at 93. Good

faith in this context refers to the plaintiff’s subjective belief that the claim is being

brought for a proper purpose. Probable cause, as the plurality recites, means

that “at the time of instituting the proceeding, there was evidence that would

lead a reasonable person, properly informed and advised, to conclude that there

was a substantial likelihood that the challenge would be successful.”

2 Restatement (Third) of Prop. § 8.5 cmt. c, at 195.

The no-contest clause is important in this case because Rex’s will provided

that Kathy would receive (1) a burial plot next to Rex at the cemetery, and (2) the

entire net income of the “Felten Family Trust,” including potential disbursements

of trust principal at the trustee’s discretion to meet Kathy’s needs. If Kathy lost

the will contest, the no-contest clause would be enforced, and Kathy would forfeit 31

“her right, title and interest to that portion or interest in [Rex’s] estate”—a burial

plot next to her father and income from the trust—that she otherwise would

receive.

In determining whether good faith and probable cause exist, we look to a

particular moment: “at the time of instituting the proceeding.” Id. When Kathy

filed the petition, she knew that her father struggled with memory problems, as

she had lived with and cared for him from about 2006 until 2019 (when Karen

moved in). Rex’s mother and sister had dementia, and Kathy recognized the same

behaviors in her father that she had observed in her grandmother and aunt after

their diagnoses.

Considering that Rex began experiencing cognitive decline years earlier, it

was reasonable for Kathy to doubt whether Rex had the capacity to create a new

will. Add to this that Rex executed the challenged will on July 2 and died on July

21. Considering the state of Rex’s overall health when he signed the will—dying

a mere nineteen days later—suspicions about his cognitive state appear well-

founded. Indeed, there can be little question that these doubts about Rex’s

capacity to execute the will were legitimate, as we know that even Rex’s lawyer

who prepared the will advised that Rex undergo cognitive testing with a physician

before executing the will.

Kathy also knew that Karen’s views often held sway with their father. As

Kathy put it, “[I]f I ever had trouble getting him to go to the doctor, all I had to

do was call her and he would jump up and go.” Kathy recounted one occasion

when she believed that Rex needed medical care, but Rex was resisting. Kathy

sought Karen’s help. Karen persuaded Rex to go to the hospital; once there, he

was diagnosed with needing a pacemaker.

Kathy also had reason to believe that Karen was telling Rex negative things

about her in the lead-up to the July 2021 will. Kathy’s understanding turned out 32

to be true—and then some—with Kathy later learning that Karen had written a

lengthy letter to Rex that accused Kathy of (among other things) having stolen

cash and other items from Rex. Indeed, Karen asserted in the letter that Kathy’s

thefts were so egregious that they amounted to “Financial Elder Abuse.” Karen

claimed that as a mandatory reporter of abuse (because of her job as a therapy

assistant), she “could lose [her] job, pay big fines,” and even “serve jail time” for

failing to report it. (At trial, Karen admitted that she had no evidence to support

any theft claim.)

Kathy also knew about Rex’s previous plans for the disposition of his

assets in his will. Kathy, during the time she had taken care of Rex, had brought

him to meet with his estate attorney several times to discuss his will. She thus

knew that the terms of the July 2021 will diverged from his prior wills—and not

coincidentally, nearly all in ways beneficial to Karen and detrimental to Kathy.

Taken together—the significant questions about Rex’s cognitive state, the

new will signed just nineteen days before Rex’s death, Karen’s confidential

relationship with Rex and her ability to influence him, the animosity between

Kathy and Karen, the changes to the will disfavoring Kathy and favoring Karen—

the facts known to Kathy before filing her claim certainly satisfy the good faith

and probable cause requirements. They constitute, in words adopted by the

plurality today, “evidence that would lead a reasonable person, properly informed

and advised, to conclude that there was a substantial likelihood that the

challenge would be successful.” Id.

Yet the plurality gives short shrift to these weighty facts and instead offers

several critiques that, in my view, amount to little. The plurality begins by

criticizing Kathy for failing to present evidence at the hearing on her objection to

the final report. The plurality refers to the hearing as Kathy’s “put up or shut up

moment.” But we have never before declared that a hearing on an objection to a 33

final report in probate spawns a “put up or shut up” evidentiary event. The

plurality’s language is pulled from prior statements in our cases about the

evidence necessary to resist a motion for summary judgment. See Slaughter v.

Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019).

The full line states: “Summary judgment is not a dress rehearsal or practice run;

‘it is the put up or shut up moment in a lawsuit, when a [nonmoving] party must

show what evidence it has that would convince a trier of fact to accept its version

of the events.’ ” Id. (alteration in original) (emphasis added) (quoting Hammel v.

Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). It’s odd to invoke

that language here considering that nothing requires courts to hold an

evidentiary hearing on an objection to a final report. The hearing in this case was

set at the executor’s request and was held by videoconference. More importantly,

the district court sat through the entire trial and was obviously familiar with all

the evidence, thus making a replay of the same evidence at the hearing

unnecessary. The district court, for its part, raised no concerns about any

purported failure to present (or re-present) evidence at the hearing on the

objection. On the contrary, it acknowledged and incorporated the evidence

presented at trial, stating that its ruling was based on “[h]aving heard the

testimony of the parties at trial and reviewed the pleadings.”

The plurality also criticizes Kathy for failing to introduce as exhibits Rex’s

prior wills. The lawyers for both Karen and Kathy stated on the record that

neither of them possessed any of Rex’s prior wills. Regardless, it’s unclear how

introducing a prior will would have mattered. The testimony was uniform on the

point that Kathy was treated less favorably under the July 2021 will than under

prior versions. The district court certainly never signaled any dispute or

confusion on this point. 34

The plurality also criticizes Kathy for failing to introduce evidence of her

lawyer’s advice about his opinion of the will contest’s likelihood of success. But

as the plurality acknowledges, advice-of-counsel evidence is of limited help in

analyzing whether probable cause exists to bring a will contest. In an academic

article that the plurality twice cites, the article’s author concedes that “rarely is

a beneficiary unable to find an attorney who will recommend litigation.” Martin

D. Begleiter, Anti-Contest Clauses: When You Care Enough to Send the Final

Threat, 26 Ariz. St. L.J. 629, 679 (1994). Even if this evidence were consequential

here, Kathy’s lawyer in the objection filing stated directly that he “is prepared to

make a professional statement as to the accuracy of the factual matters related

to him that caused the case to be filed, and . . . that, while the case did not turn

out as desired, he would not hesitate to take an identical case to a jury again.”

It seems apparent to me from this statement that (1) the lawyer believed that the

facts known at the time he filed the case met the necessary threshold and (2) that

he still believed the facts met that threshold at the end of the case.

Finally, the plurality criticizes Kathy for insufficiently investigating her

claims before filing suit, and specifically faults her for not asking for the report

about the cognitive testing that attorney Billy Coakley recommended that Rex

undergo. But Kathy testified that Karen had shut her out of many matters

involving Rex in the period leading up to his death. How was Kathy to guess that

Rex’s attorney would advise cognitive testing for Rex before signing the new will?

It’s certainly never suggested that anyone volunteered this information to Kathy.

And even if Kathy had had the prescience to ask about it, and even if Kathy had

received information about it, it’s not clear to me that knowing about it would

have much diminished the good faith or probable cause of Kathy’s claims. The

fact that Rex’s attorney felt the need to advise such a step might reasonably have

heightened Kathy’s suspicions about Rex’s cognitive state. 35

Today’s decision throws out of whack the balance we have long attempted

to create between the enforcement of no-contest clauses and the endorsement of

will contests that root out wrongdoing. It will no doubt dissuade some—perhaps

many—beneficiaries with valid claims in future cases from contesting wills and,

in so doing, allow schemers to profit from their misconduct. Because Kathy filed

her case in good faith and with probable cause, I would reverse the district

court’s order that overruled her objection to the final report and would hold the

no-contest clause unenforceable as to her.

Christensen, C.J., joins this dissent.