CAN YOU HEAR ME NOW? DRAFTING A NO CONTEST CLAUSE UNDER THE NEW RULES

By Shirley L. Kovar^* and John A. Hartog^**

I. INTRODUCTION

Recent developments in California case law and statutes have exposed the weaknesses of both the "generic no contest clause" (i.e., one size fits all) and "kitchen sink drafting" (i.e., wholesale inclusion of all conceivable beneficiary petitions or claims).

For example, Burch v. George¹ and Genger v. Delsol² illustrate "the integrated estate plan." In those cases the court examined the testator’s intent to determine whether the contest of a separate document that is an "integral part" of the estate plan should be included within the ambit of the no contest clause contained within the testamentary document. Other cases have explored the testator’s intent to trigger a "contest" upon the beneficiary’s filing of a petition to characterize the character or ownership of property.³The legislative response to the judicial expansion of a "one size fits all" approach was Probate Code § 21305(a),⁴ which makes the generic no contest clause obsolete, meaning "ineffective," to trigger a "contest" in three identified circumstances.⁵