THE NEW NO CONTEST LAW: NEW CHALLENGES FOR TRUSTS AID ESTATES ATTORNEYS
By Neil F. Horton, Esq*
The Legislature has enacted Senate Bill ("SB") 1264, which dramatically changes the rules governing the enforcement of no contest clauses. The new law will repeal Probate Code1 sections 21300 – 21322, the existing provisions concerning no contest clauses,2 and replace them with Sections 21310 – 21315. The new law is reproduced in an appendix following this article. This article describes the changes made by the new law, the reasons for them, and some of the challenges they present to practitioners. While the new law is a substantial improvement over existing law, it fails to resolve certain problems and, like most new legislation, presents some new ones as well.
The new law stems from concerns expressed by the Executive Committee of the Trusts and Estates Section of the State Bar ("Texcom") that existing law regarding no contest clauses was too complex and uncertain in its operation. This uncertainty resulted in an increase in declaratory relief applications and increased delay and expense in administering trusts and estates. In addition, Texcom was concerned about elder abusers using no contest clauses to shield their undue influence.3 The Legislature directed the California Law Revision Commission ("CLRC") to study the issue and to report on a broad range of options, including modifying or repealing the existing statute.4 After more than two years of study, the CLRC recommended a new law which, with certain modifications, became SB 1264.