Are you considering filing a will contest in Sacramento County Probate Court? Placer County Probate Court? El Dorado County Probate Court? Whether you want to file in one of these Courts or any of the other 55 Trial Courts in California you should know the practical effect of a will's "no contest" clause.
It may surprise you to know that since January 1, 2010, a California probate judge cannot enforce that clause if "at the time of filing of a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery." Do you know that the law assumes that no-contest clauses are unenforceable unless some exceptions apply?
What is a No Contest Clause?
Do you know what a no contest clause is?
"No contest" provisions are disfavored as a matter of public policy because the heir or beneficiary's forfeiture of her legitimate rights of challenge are so harsh that they deter legitimate challenges to documents that may have been executed fraudulently or under undue influence.
"No contest" clauses are also sometimes called "in terrorem" clauses - an old Latin reference for "in fear" or "in threat." The threat is if the "no contest" clause is enforced the challenger will lose his or her inheritance. California law fortunately has reduced and nearly eliminated this fear.
So what does this mean for your Sacramento, Stockton, Roseville, Placerville, Santa Rosa, Fremont, San Mateo or Oakland will contest or trust contest?
For one thing, it means you are not going to lose your inheritance for asserting your rights in a California will contest or California trust contest.
Why does California have this policy?
California Courts have long recognized that will contests and trust litigation brought with good cause - now "probable cause" - are good for public policy.
If someone is concerned that there is wrongdoing in an estate their challenge rights should be supported - not suppressed.
Do you have valid grounds for a will contest - for trust litigation?
Do you need a trust litigation attorney? A probate litigator?
Probate litigation is an area of law where experience counts. Remember the old saying that "good judgment comes from experience - and experience from bad judgment." While this is tongue in cheek wisdom, it does support our belief that "experience is the greatest teacher."
Mike Hackard was sworn in as a California lawyer in 1976. He is now in his 40th year of practicing law. Mike's first will contest for clients was in 1977. Call Mike at 916-313-3031 if you think that his experience may help you to understand your case.