A LEGISLATIVE PROPOSAL TO ABOLISH ENFORCING NO CONTEST CLAUSES IN CALIFORNIA

By Neil F. Horton^*

I. INTRODUCTION

On July 24, 2004, the Executive Committee of the Trusts and Estates Section, State Bar of California, voted to propose legislation that would abolish the enforcement of no contest clauses for donative instruments in California. Consistent with its repeal of no contest clause enforcement, the proposed legislation also would repeal the provisions that allow a beneficiary under a donative instrument to obtain declaratory relief as to whether a proposed action would cause a forfeiture.

In order to deter litigation over the validity of instruments, the proposed statute would authorize the court in its discretion to award attorney’s fees against an unsuccessful party who, without reasonable cause, seeks to invalidate an instrument on grounds of revocation, lack of capacity, fraud, misrepresentation, menace, undue influence, mistake, lack of due execution, or forgery. The court would have discretion to award attorney’s fees whether or not the instrument contains an attorney’s fees provision or a no contest clause.