Trusts and Estates

Ca. Trs. & Estates Quarterly 2017, Volume 23, Issue 2

REPORTS OF THEIR DEATH ARE GREATLY EXAGGERATED: THE VIABILITY OF NO CONTEST CLAUSES AGAINST DIRECT CONTESTS BROUGHT WITHOUT PROBABLE CAUSE

By Andrew Zabronsky, Esq. and Naznin Bomi Challa, Esq.*

I. INTRODUCTION

It has been seven years since the statutes governing no contest clauses were extensively revised to, among other things, prohibit their enforcement against direct contests filed with probable cause.1 Yet there is still no published decision elucidating the standard for probable cause. In the interim, many practitioners have grown complacent, some going so far as to report that "no contest clauses are dead in California." With apologies to Mark Twain, the authors believe such reports are greatly exaggerated.2 This article is intended as a warning to practitioners, lest they find out the hard way that no contest clauses retain substantial potency. A recent case the authors litigated-in which beneficiaries of a $10 million gift were held to have triggered the no contest clause-provides an object lesson. Although this article focuses on contests based on the claim of undue influence, the analysis would be similar for other contests.

II. BACKGROUND

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