THE DEAD HAND WRITES – AND, HAVING WRIT, MOVES ON: THE INCREASING PREVALENCE OF NO CONTEST LITIGATION IN CALIFORNIA

By John A. Hartog, Esq.^* and Charles P. Wolff, Esq.^**

I. INTRODUCTION

Human beings naturally seek to influence the behavior of close relatives and friends. These same human beings, often being propertied, also naturally expect that their loved ones will observe a simple request when receiving a substantial legacy: "Just don’t fight with your brother (or "my accountant" or "your step-mother" or "my caregiver of three weeks") after I’m gone." Thus, the logic of encouraging "good" behavior, or discouraging "bad" behavior, seems irresistible to these beneficent, generous donors.

That rationale is the simple genesis of in terrorem, or "no contest," clauses in wills and trusts. Not only do "no contest" clauses often embody the legitimate intent of the donor, they are also seen as deterring litigation and making administration of estates less cumbersome, time-consuming and expensive.