Overcoming No-Contest Clauses in Estate and Trust Litigation

Here at Hackard Law, our attorneys regularly represent Northern California trustees and beneficiaries in probate litigation cases. Issues examined include accountings; trustee removal and surcharge petitions; undue influence disqualification petitions; elder financial abuse; fraud; and concealment and conversion actions.

In the representation of probate claims, No-Contest provisions require special attention. Let's establish the definition: No-Contest is a clause within a will or trust that prevents a beneficiary from challenging a will or trust, typically by penalty of forfeiture of the inheritance. The practical effects of all No-Contest provisions are not the same- depending on the facts, the clause can provide either a strong or flimsy barrier to estate challenges.

California law changed in 2010 and now provides in part that a No-Contest clause is unenforceable where a direct contest is brought with "probable cause" to challenge a will or trust based upon:

• Forgery
• Lack of due execution
• Lack of capacity (physical infirmity, unsound mind)
• Menace, duress, fraud, or undue influence (controlling child or caretaker, etc.)

State law sees probable cause as based on reasonability. A judge would ask this question: When an individual contests a will or trust, would the facts they know cause a reasonable person to believe there's a reasonable likelihood that relief will be granted after an opportunity for further investigation and discovery? California lawyers and judges have to determine which situations or circumstances will support a finding of probable cause.

The new case law is sparse, and it's still unclear what factors would bring a court to support a reasonable person's conclusion that there is probable cause for a filing. Probable cause will be fact-specific, and it's better to have counsel make a determination based upon all matters affecting the case. However, it cannot be assumed that a court will give counsel's opinion credence - judges' own opinions can differ across the jurisdictions of California Probate Courts.