CALIFORNIA’S NO CONTEST STATUTE SHOULD BE REFORMED RATHER THAN REPEALED

By James B. MacDonald^* and Randolph B. Godshall^**

I. INTRODUCTION

Litigation is a difficult, trying and draining experience for families, ranging from the merely unpleasant to downright poisonous. Families can be torn apart as a by-product of the ordeal. Assets which could be used for education, support or health care for family members are "wasted" on attorneys’ fees and court costs. Matters can drag on for years. Testators and drafters of wills and trusts attempt to avoid the protracted family litigation and the attendant negative consequences vividly described in Charles Dickens’ classic litigation piece, Jarndyce v. Jarndyce, from his popular novel, Bleak House, which drew in family members, destroying their otherwise productive lives, until the entire estate was consumed by costs.¹ They make use of no contest clauses in their instruments to dissuade beneficiaries from bringing a legal challenge to the instrument’s validity or effectiveness, by depriving them of the interests they would otherwise have received under the instrument if they do so. Some view this as a condition attached to and of the gift. Others view it as imposing a forfeiture. In any event, the goal is reasonable and entirely understandable.

No contest clauses, however, may also discourage entirely appropriate resort to the courts in uncovering undue influence, construing the terms of a document or determining the suitability of a fiduciary who has not acted in the best interests of the estate or its beneficiaries.