IT’S TIME TO EXEMPT NO-CONTEST CLAUSE ENFORCEMENT PROCEEDINGS FROM THE REACH OF THE ANTI-SLAPP STATUTE

By Douglas E. Lawson, Esq.,^* and Eunice Y. Lim, Esq.^{* 1}

I. INTRODUCTION

Consider the following scenario: A beneficiary has filed a will contest alleging undue influence and lack of capacity. The will contains a no-contest clause. The proposed executor files a petition to disinherit the beneficiary because, the proposed executor claims, the beneficiary lacked probable cause to bring the contest. The beneficiary responds to the petition to disinherit by filing a special motion to strike under California’s anti-SLAPP statute. Given the definition of a strategic lawsuit against public participation ("SLAPP"), the petition to disinherit will almost certainly be deemed a SLAPP.

As explained in detail below, the proposed executor faces the unenviable task of demonstrating that the beneficiary lacked probable cause when he or she filed the contest. Depending on the timing of the petition to disinherit, the proposed executor may be forced to make this showing without being allowed to take any discovery. Should the proposed executor lose the motion to strike his pleading, the question of disinheritance will be determined in favor of the beneficiary. There will never be a disinheritance, no matter how weak the beneficiary’s claims turn out to be. Further, irrespective of who wins, appellate rights are immediate: the parties could face a possible appeal ? and corresponding delay ? before any discovery occurs on the contest.