NO CONTEST CLAUSES NEED TO BE REFORMED, NOT ABOLISHED^‡

By Adam F. Streisand, Esq.^* and Albert G. Handelman, Esq.^**

I. INTRODUCTION

On July 24, 2004 the Executive Committee of the California State Bar’s Trusts and Estates Section, comprised of some the most accomplished and devoted trust and estate lawyers in the state, voted by a wide majority to approve proposed legislation that would abolish the enforceability of no contest clauses in California. The authors of this article dissented for the reasons discussed below and hope that the Legislature will decline to enact the proposed legislation. The authors offer instead a very simple solution to the problems that motivated the Executive Committee into action.

It has become commonplace for estate planners to include a no contest clause in a will or trust to stem the ever increasing tide of internecine warfare. A no contest clause is intended to deter beneficiaries—upon threat of disinheritance—from challenging a will, a trust or some other document constituting part of an individual’s integrated estate plan, or any provision of any such document. A majority of states do not enforce no contest clauses.¹But they have been valid and enforceable in California for more than 100 years because no contest clauses advance the important public policies of discouraging litigation and protecting testator intent.