WHY REPEALING THE NO CONTEST CLAUSE IS A GOOD IDEA
By John A. Hartog*, Neil F. Horton**, Shirley L. Kovar***
California is unique among the fifty states in the volume of its no contest clause litigation. Its law also is unique in that it both enforces no contest clauses and allows some would-be contestants to bring actions for declaratory relief to determine whether their proposed actions would violate no contest clauses.
The majority of states either do not enforce no contest clauses, or enforce such clauses only when the contestant lacks probable cause for the challenge to the instrument. These states usually allow the court either to make a determination after and not before the contest.