A PRACTITIONER’S VIEW

By David A. Baer^*

Probate Code §§ 21305(a) and (b) now do provide greater clarity as to which actions do not constitute a contest. Nevertheless, parties and their counsel continue to make frequent use of Probate Code § 21320 petitions for declaratory relief as a precautionary measure. The purpose is not just to eliminate the risk that filing the underlying petition could result in the client’s disinheritance, but also to eliminate the risk of a potential malpractice claim. Unfortunately, the frequent use of Probate Code § 21320 petitions—a procedure that the proposed legislation would eliminate—is creating substantial additional expense and delay in probate litigation.

Probate Code § 21320 petitions are presently being used in a variety of circumstances. First, the exceptions to the enforceability of a no contest clause under Probate Code § 21305(a) do not apply to instruments created before January 1, 2001, and most of the exceptions under Probate Code § 21305(b) do not apply to instruments of decedents who died before January 1, 2001.¹

Second, while Probate Code §§ 21305(a) and (b) create a safe harbor for numerous types of actions, they do not include certain actions that might also reasonably be argued not to constitute contests. For example, no reported opinion holds that a petition to disinherit a beneficiary for allegedly violating a no contest clause cannot itself constitute a violation of the clause.