Trusts and Estates

Ca. Trs. & Estates Quarterly 2019, Volume 25, Issue 3


By Craig S. Weinstein, Esq.*


As long as people have been able to draft testamentary instruments, heirs and beneficiaries have fought over whether those instruments are valid. As a means of protecting one’s testamentary disposition, California common law has permitted the enforcement of no contest clauses for more than 100 years.1 While the law regarding no contest clauses—or in terrorem clauses—has evolved, been codified, amended, and ratified over the years, such clauses have long remained a valid basis for disinheriting beneficiaries.2

The rationale for enforcing no contest clauses makes sense. They promote the sound policy that testators are free to dispose of their property however they see fit, while also discouraging litigation by those whose expectations are frustrated by the donative scheme in the instrument.3 Ultimately, a contestant must decide whether the fight to potentially receive more from a decedent’s estate or trust outweighs the risk of losing some or all of what the contestant would have received under the estate plan.

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