Santa Clarita | Hackard Law | California Estate & Probate Litigation

Helping Family Members Assert Their Rights When a Will Contains a No Contest Provision

Probate litigation can become expensive and hostile during a time when loved ones would prefer to grieve for their losses.

To reduce the likelihood of creating such litigation, many wills contain a provision that punishes anyone who challenges the validity of the will. Challengers may leave with partial inheritances, attorney fees, or no inheritances at all. The experienced Santa Clarita probate litigators at Hackard Law can help family members and friends determine how best to protect their legal rights in the face of a no contest will provision.

What Is a No Contest Provision?

A person making a will (a “testator”) who does not want potential heirs to fight over the estate may use provisions of the will to punish such challenges. A typical no contest provision simply directs the executor to disinherit any beneficiary who objects to an inheritance. This dissuades heirs from competing over the will.

State laws can limit the use of a no contest clause. Section 21311 of the California Probate Code allows enforcement of such clauses only against (1) a direct claim brought without probable cause, (2) a challenge to a property transfer on the grounds that it did not belong to the person who transferred it, or (3) the filing of a creditor’s claim against the estate (and related actions). This means that a testator cannot prevent claimants from challenging a will when there is probable cause to do so. California law will still allow such people to present their evidence to the probate court to challenge a will.

Testators can limit and tailor no-contest clauses to offer better protection for their specific circumstances. For example, if a testator has children who constantly fight and have a history of not getting along, a no contest provision could specifically refer to challenges by these siblings.

Or a testator who is knowingly entering the early stages of dementia might allow for challenges to a will based on fraud, duress, or coercion. These modifications recognize the vulnerable position of a person in declining health and protect that person from financial abuse, manipulation, or control by an unscrupulous caregiver.

How a No Contest Provision Can Place Heirs in a No Win Situation

No contest provisions can reduce challenges to a person’s estate, but they can also punish an heir for raising reasonable concerns about the validity of a will. For example, an heir who challenges an obviously forged will with a no contest provision could risk complete disinheritance to prove the falsehood. This no-win situation not only punishes the heir but also runs counter to the testator’s wishes.

The estate of legendary musician James Brown is an illustrative example of the legal chaos that probate litigation can create—even when a will includes a no contest provision.

Forbes reports that Brown executed a will in 2000. The will provided for his children and grandchildren and created a charitable trust upon his death. The will also directed his executor to vigorously oppose and disinherit anyone who challenged his will. He considered legal challenges an affront to his wishes.

Despite these clear instructions, Brown’s will was subjected to many legal challenges when it was submitted to probate. His children claimed it was the product of undue influence over Brown by his attorney and others.

A former partner claimed the right to an omitted spouse’s portion of the estate, having purportedly married Brown after the execution of the 2000 will. Her former marriage was not annulled at the time she and Brown married. This made their marriage legally invalid. Yet she and Brown had an on-again, off-again relationship until his death. Further complicating the issue was a prenuptial agreement signed before the invalid marriage, in which the woman disclaimed any right to Brown’s estate. (Because prenuptial agreements are only effective upon a valid marriage, the agreement never became legally enforceable, but it was nonetheless evidence of Brown’s intentions regarding her claims to his estate.)

Ultimately, the case caught the attention of the South Carolina Attorney General, who interceded in the public interest due to Brown’s charitable trust. The Attorney General’s brokered a settlement that recognized the purported wife and her son as legitimate heirs without so much as a DNA test. Under the terms of the agreement, the newly recognized wife received 25 percent of the estate, Brown’s children received 25 percent of the estate, and the remaining 50 percent went to the charitable trust. The probate court approved this settlement.

But then two trustees (whom the settlement removed from the trust) appealed the agreement. The case made it all the way to the South Carolina Supreme Court. The Court’s opinion contained harsh words for the Attorney General, whose actions it deemed unprecedented and contrary to his duty to protect charitable trusts. The Court also noted with disapproval that the agreement was overseen almost exclusively by the Attorney General’s Office.

Ultimately, the state Supreme Court found that the initial claims brought by family members contradicted Brown’s wishes, and were not made in good faith to begin with. This brought the case back to its incipient phase.

After six years and millions of dollars in attorneys’ fees, the case had made no progress, and Brown’s wishes remained unfulfilled.

Experienced Representation to Protect Legal Rights Throughout an Estate Administration

Many heirs are surprised to learn how many ways the administration of an estate can deprived them of their legal rights. An experienced Santa Clarita estate attorney can help you determine whether you have a valid legal challenge to a will, trust, estate, or any other procedure in the probate court. Call us at (916) 313-3030 or (213) 357-5200, or write us online today to schedule your free consultation with one of the experienced estate attorneys at Hackard Law.

Attorney Michael Hackard

Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]

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