California's No-Contest Clause
by
Ruth Koller Burke on Oct. 26, 2012
Estate Trusts Estate Estate Planning Estate Wills & Probate
Summary: No Contest Clause in California
California’s No-Contest Clause
Consider
including a no-contest clause when preparing a will or trust, especially if you’re
worried that your estate plan will be challenged upon your death. You may be particularly
concerned about a challenge if you plan to disinherit a family member, divide the
estate unequally among children, or distribute the estate to a current spouse
rather than children from a prior marriage. In California, no-contest clauses are enforceable against a direct contest brought without probable cause.
California law enforces no-contest clauses to further the original intent of the testator (a person who died with a will) or the settlor (a person who created a trust). In California, a no-contest clause prevents a beneficiary from receiving an inheritance if the beneficiary initiates a direct contest of the will or trust, without probable cause. A no-contest clause forces the contesting beneficiary to determine whether he should take the gift provided by the instrument or initiate a contest and risk losing everything if a court determines the contest was brought without probable cause.
In
order to trigger the no-contest clause, a beneficiary must initiate a direct
contest. A direct contest is defined as the
filing of a pleading with the court, alleging that a will or trust in invalid
based on grounds such as forgery, lack of due execution, lack of capacity,
menace, duress, fraud, or undue influence.
If a direct was initiated, the courts will analyze whether the direct
contest was brought with “probable cause.”
Probable cause exists if the facts known to the beneficiary at the time
of initiating the contest would otherwise cause a reasonable person to believe
there is a reasonable likelihood that the relief requested by the challenge
would be granted by the court after an opportunity for further investigation.
If you are considering bringing a claim as a beneficiary of a will or trust, it is recommended that you consult an attorney to help analyze whether the claim will trigger the no-contest clause. It is easy for a potential contestant to accidentally trigger a no-contest clause, resulting in disinheritance, because the issue of whether a contest was brought with probable cause is determined by the courts on a case-by-case basis.
Read the text of the no-contest clause laws in California's Probate Code sections 21310-21315.
