How a No-Contest Clause Works

Guidance from Los Angeles Wills Attorney Shapiro

A no-contest clause is a provision in a testamentary instrument that is meant to discourage beneficiaries from disputing a will. This clause is typically used to threaten to disinherit a beneficiary of the will should the beneficiary challenge the terms of the will in a court action, thereby forcing disgruntled beneficiaries to comply with the provisions of the will. The inclusion of no-contest clauses in wills ensures that a testator's (person who made the will) wishes and directions are carried out without question or frivolous litigation. In California, any person executing a testamentary instrument can include this provision.

An example of a no-contest clause is as follows:

• "If a beneficiary under this will attacks or contests any provision found in the will, any bequest granting an interest or share to the contesting beneficiary shall be revoked. A contesting beneficiary will receive no part of the estate."

When is a no-contest clause enforceable?

In 2008, Governor Arnold Schwarzenegger signed Senate Bill No. 1264 into law, repealing the existing no-contest rules and replacing it with Probate Code section 21310 et seq. The law took effect on January 1, 2010 and applies retroactively to any instrument that became irrevocable on or after January 1, 2001.

Under the new rules, no contest clauses are pretty much unenforceable except for the following:

• A direct contest that is brought without probable cause. Probable cause exists if, at the time of filing 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.
• If expressly stated in the no-contest clause, a pleading to challenge a transfer of property on the grounds that it was not the transferor's property at the time of the transfer.
• If expressly stated in the no-contest clause, the filing of a creditor's claim or prosecution of an action based on it.

One significant change that should be noted to the no contest clause is that the contestant will not be disinherited or penalized if they had probable cause to bring an action. So if you are a beneficiary of a will or trust with a no-contest clause and you believe you have sufficient grounds to challenge it, contact a Los Angeles trust lawyer at the Law Offices of David A. Shapiro, P.C.

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