FROM THE EDITOR

By James J. Brown, Esq.^*

By now, every estate and trust attorney in California is (or should be) aware of the new legislation governing no contest clauses. The new provisions, effective January 1, 2010, have been summarized, analyzed and debated in the last few issues of the Quarterly. This comment continues the dialog, not with concrete analysis or enlightening answers, but with questions as to what the new law really means to those who meet with, and ultimately represent, people who file challenges to testamentary instruments.

As a result of the new legislation, we all now know that a "direct contest" of a will or trust is only enforceable if it is brought "without probable cause."¹ Of particular interest to me was Probate Code section 21311, the statute that encompasses the legislature’s attempt to provide guidance on when, in the context of the enforcement of a no contest clause, probable cause exists:

After reviewing section 21311, I found myself having more questions than answers as to how the enforcement of no contest clauses will play out in real life. The answers to some of my questions seemed pretty obvious. For example, as to how the question of probable cause will be presented for determination, it would appear the issue will be brought before the court, after an unsuccessful contest, in the same manner that it was prior to the enactment of the new legislation. Namely, if the unsuccessful contest related to a trust instrument, it can be assumed the court will be asked to enforce the no contest clause through a Probate Code section 17200 petition.³ On the other hand, if the unsuccessful contest is of a will, the court will likely be asked to enforce the no contest clause by way of a Probate Code section 11700 petition.⁴ In both settings, it would appear the petitioner seeking to enforce the no contest clause will need to specifically assert, and then prove, that the contestant filed the contest without probable cause.