Can I Sue a Trustee Without Triggering a No Contest Clause in New York?
If you are a beneficiary of a trust and believe the trustee is withholding distributions, refusing to provide information, mismanaging assets, or otherwise violating the terms of the trust, you may be considering legal action. But what happens if the trust contains a no-contest clause?
This can create a difficult situation. A beneficiary may believe the trustee is doing something wrong but fear that filing a lawsuit could cause the beneficiary to lose everything.
Fortunately, suing a trustee does not automatically trigger a no-contest clause in New York. Whether the clause applies generally depends upon the precise language of the trust and, critically, the nature of the claims being asserted.
The New York Court of Appeals addressed this issue directly in Carlson v. Colangelo, 44 N.Y.3d 116 (2025), providing important guidance for beneficiaries seeking to enforce their rights under a trust.
Can I Sue a Trustee Without Triggering a No Contest Clause? What Is a No-Contest Clause in a New York Trust?
A typical provision may state that if a beneficiary contests the validity of the trust, attempts to invalidate its provisions, or challenges the grantor’s distribution of property, the beneficiary forfeits his or her interest under the trust.
New York courts recognize and enforce these provisions. However, the New York Court of Appeals has emphasized that in terrorem clauses are not favored and must be strictly construed. In 2025, the Court expressly confirmed that this principle applies to no-contest clauses contained in trusts as well as wills.
That distinction is important. A court generally should not expand a no-contest clause beyond what its language and the grantor’s intent actually prohibit.
Can You Sue a Trustee Without Contesting the Trust?
Yes. In some circumstances, a beneficiary can sue a trustee to enforce the trust rather than challenge it.
There is an important difference between saying:
“This trust is invalid and should be set aside,”
and saying:
“This trust is valid, but the trustee is not following it.”
The second type of claim may actually seek to carry out the grantor’s intentions rather than defeat them.
That distinction was at the center of the New York Court of Appeals’ decision in Carlson v. Colangelo.
Can I Sue a Trustee Without Triggering a No Contest Clause? Carlson v. Colangelo: Suing the Trustee Did Not Trigger the No-Contest Clause
In Carlson v. Colangelo, a beneficiary commenced an action involving a revocable trust against the trustee. Among other relief, she sought property she claimed the trust required the trustee to distribute to her.
The trustee argued that simply bringing the lawsuit violated the trust’s in terrorem clause and caused the beneficiary to forfeit her inheritance.
The New York Court of Appeals disagreed.
The Court explained that the beneficiary’s claims did not attack the legality or validity of the trust itself. Instead, she sought to require the trustee to make distributions she claimed were required by the trust.
The Court emphasized that an action intended to require a trustee to distribute property in accordance with the trust’s provisions is fundamentally different from an action seeking to invalidate the trust or upset the grantor’s distributive plan.
The decision is particularly important for trust beneficiaries because it makes clear that the existence of a no-contest clause does not necessarily give a trustee immunity from judicial review.
What Types of Claims Against a Trustee May Not Trigger a No-Contest Clause?
These may include proceedings seeking to:
Compel the Trustee to Make Required Distributions
If the trust requires a trustee to distribute money or property to a beneficiary and the trustee refuses to do so, the beneficiary may seek judicial intervention.
A proceeding asking the court to require the trustee to follow an existing distribution provision may be an action to enforce the trust rather than invalidate it.
Compel a Trust Accounting
Beneficiaries may have legitimate questions about how trust assets have been collected, invested, spent, or distributed.
Depending upon the circumstances, a beneficiary may seek an accounting from a trustee so the trustee’s administration of the trust can be reviewed.
The mere fact that a beneficiary seeks information or judicial review of a trustee’s administration should not automatically be treated as an attack upon the validity of the underlying trust. However, what claims the beneficiary makes in connection with the accounting can matter.
Challenge Alleged Trustee Misconduct
A trustee owes fiduciary duties in administering a trust.
Potential disputes can involve allegations that the trustee:
- improperly used trust assets;
- engaged in self-dealing;
- failed to make required distributions;
- improperly transferred trust property;
- failed to preserve trust assets;
- improperly favored one beneficiary over another;
- failed to provide required information;
- made unauthorized expenditures; or
- otherwise breached fiduciary duties.
A claim directed at how the trustee administered a valid trust is not necessarily the same as a claim that the trust itself should be invalidated.
Seek a Surcharge Against a Trustee
Where a trustee’s breach of fiduciary duty has allegedly caused financial damage to the trust, beneficiaries may seek to hold the trustee financially responsible through a surcharge.
Again, the beneficiary may be asking the court to enforce the trust and fiduciary obligations rather than alter the grantor’s estate plan.
Seek Removal of a Trustee
Serious trustee misconduct can potentially lead to an application seeking removal of the trustee.
But beneficiaries should exercise particular caution before commencing such a proceeding when the trust contains an in terrorem clause. The exact language of the clause, the grounds asserted for removal, and the relief requested should all be analyzed before the proceeding is filed.
Can I Sue a Trustee Without Triggering a No Contest Clause? When Can a Lawsuit Trigger the No-Contest Clause?
The risk becomes much greater when a beneficiary’s lawsuit attacks the validity of the trust itself or seeks relief inconsistent with the grantor’s dispositive plan.
For example, claims alleging that the trust should be declared invalid because of:
- lack of mental capacity;
- undue influence;
- duress;
- fraud concerning execution;
- improper execution; or
- another defect in the creation of the trust
may fall squarely within a clause prohibiting challenges to the trust.
New York appellate decisions demonstrate that courts will enforce no-contest provisions where a beneficiary actually attacks the validity of the trust.
For example, in Matter of Tumminello v. Bolten, a beneficiary had previously sought to have a trust declared “null and void.” The Second Department concluded that he had violated the no-contest provision and forfeited his interest.
Likewise, in Matter of Biondo, a beneficiary’s attempt to add objections challenging the validity of the trust resulted in enforcement of the trust’s in terrorem clause.
Can I Sue a Trustee Without Triggering a No Contest Clause? – The Exact Language of the Trust Matters
There is no universal New York no-contest clause.
Some clauses prohibit only an action challenging the validity of the trust. Others use substantially broader language purporting to prohibit challenges to particular provisions, distributions, or other portions of an estate plan.
New York courts therefore examine the language contained within the particular trust.
The Court of Appeals has stated that courts should look within the four corners of the trust instrument to determine the grantor’s intent. At the same time, because in terrorem clauses are strictly construed, courts should not automatically treat every lawsuit involving a trust as a prohibited contest.
Can I Sue a Trustee Without Triggering a No Contest Clause? What If I Claim Property Does Not Belong to the Trust?
This is an especially important—and potentially dangerous—area.
In Carlson, the beneficiary asserted, among other things, an ownership interest in a company connected with the trust. The Court of Appeals concluded that the nature of her claims did not constitute a prohibited trust contest under the clause at issue. The Court stressed that the triggering question focused on the nature of the claim, rather than merely whether the beneficiary ultimately succeeded on it.
But property-ownership disputes can still create substantial risk.
In Matter of Selma V. Kelter Trust, decided by the Second Department on December 31, 2025, the beneficiary had commenced an earlier action effectively alleging that the trust had no claim to certain real property. The court held that the beneficiary had contested provisions of the trust within the meaning of that trust’s in terrorem clause and forfeited her interest.
The comparison between Carlson and Kelter illustrates why beneficiaries should obtain legal advice before filing a lawsuit concerning ownership of trust property.
Can I Sue a Trustee Without Triggering a No Contest Clause? Are the New York Statutory Safe Harbors for Wills the Same for Trusts?
Not yet.
New York’s EPTL 3-3.5 contains specific rules concerning in terrorem provisions applicable to wills, including certain protected conduct.
Trusts are different. The Second Department has expressly noted that, at this time, no statute governs in terrorem clauses in trusts in the same manner as wills, although New York statutes and cases concerning wills may provide useful guidance when courts interpret trust provisions.
Beneficiaries therefore should not assume that a procedure permitted in connection with a will contest automatically provides the same protection when dealing with a trust.
Can I Sue a Trustee Without Triggering a No Contest Clause? A Trustee Cannot Necessarily Use a No-Contest Clause as a Shield
A trustee facing allegations of misconduct may argue that a beneficiary risks forfeiture simply by bringing the trustee into court.
But Carlson v. Colangelo significantly limits that argument where the beneficiary is genuinely seeking to enforce the trust.
The Court of Appeals recognized that no-contest clauses ordinarily serve to prevent challenges that undermine a grantor’s estate plan—not to prevent beneficiaries from seeking judicial enforcement of the trust the grantor actually created.
That does not mean every claim against a trustee is protected. It means the court must examine what the beneficiary is actually challenging.
FAQ – Can I Sue a Trustee Without Triggering a No Contest Clause?
Potentially, yes. Filing a lawsuit against a trustee does not automatically trigger a no-contest clause. New York courts distinguish between a lawsuit challenging the validity of a trust and a lawsuit seeking to enforce the trust or address a trustee’s administration. The precise language of the trust and the claims being asserted are critical.
Not necessarily. A request for an accounting may seek information about the trustee’s administration rather than challenge the validity of the trust. However, additional claims asserted in connection with the accounting could affect the analysis, so the trust’s no-contest provision should be reviewed before commencing a proceeding.
Potentially. If the trust requires a distribution and the trustee refuses to make it, an action seeking enforcement of the trust may be different from a prohibited challenge to the trust. In Carlson v. Colangelo, the New York Court of Appeals held that an action seeking distributions consistent with the trust did not trigger the in terrorem clause at issue.
Possibly, but the answer depends upon the language of the trust and the claims supporting removal. A proceeding based on alleged trustee misconduct may be directed at the trustee rather than the validity of the trust, but beneficiaries should have the specific no-contest clause reviewed before commencing a removal proceeding.
A beneficiary may have claims against a trustee for breach of fiduciary duty, including claims involving self-dealing, misuse of assets, improper distributions, or other misconduct. Whether those claims implicate a no-contest clause depends upon what the clause prohibits and whether the lawsuit challenges the trust itself or instead seeks to enforce the trustee’s obligations.
If an enforceable no-contest clause is triggered, the beneficiary may forfeit some or all of the inheritance provided under the trust, depending upon the language of the instrument.
Yes. Because enforcement depends heavily upon the wording of the clause and the nature of the proposed claims, beneficiaries should have the trust and contemplated pleadings reviewed before litigation begins.
Can I Sue a Trustee Without Triggering a No Contest Clause? Speak With a New York Trust Litigation Attorney Before Filing
Trust litigation involving an in terrorem clause can carry unusually high stakes. A beneficiary may have legitimate claims against a trustee while simultaneously having a substantial inheritance at risk.
Before commencing a proceeding, it is important to analyze the trust language, the trustee’s alleged conduct, the nature of the beneficiary’s claims, and the relief that will be requested.
RK Law PC represents beneficiaries, trustees, and other interested parties in contested trust and estate matters throughout New York. Our attorneys handle disputes involving trustee misconduct, trust accountings, disputed distributions, breach of fiduciary duty, trustee removal, trust construction, and no-contest clauses.
If you believe a trustee is withholding your inheritance, mismanaging trust assets, refusing to provide an accounting, or otherwise violating the trust, contact RK Law PC to discuss your rights before taking action that could affect your beneficial interest.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
Visit Regina on LinkedIn
Visit Regina on Facebook
This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.