Cite as B310619
Filed July 25, 2022, Second District, Div. Three
By Jaime B. Herren
Holland & Knight LLP
Headnotes: No Contest Clause Enforcement Petition – Lack of Probable Cause
Summary: Beneficiary was determined predeceased for filing a direct trust contest outside the 120-day period following trustee notification where her unexcused late filing constituted lack of probable cause.
Tale and Iraj Shamtoubi created the Shamtoubi Trust for their benefit, with their four children, including Petitioner Meiri, as remainder beneficiaries. The 1994 amendment and restatement included a no contest clause. Following her husband’s death, Tale served trustee notification on all Trust beneficiaries. 230 days later, Meiri filed a petition seeking to invalidate the Trust due to her deceased father’s lack of capacity and undue influence and fraud by her siblings in 1994. Tale demurred and Meiri, admitting her untimeliness, amended her petition to further allege undue influence and elder abuse, and to seek damages and forfeiture of the other beneficiaries’ interests in the Trust. Tale sought instruction that Meiri violated the Trust’s no contest clause. The probate court concluded, without an evidentiary hearing, that Meiri had filed a direct contest without probable cause and she should be treated as predeceased without surviving issue.
The appellate court affirmed. It found Meiri’s action was a direct contest irrespective of its tardiness. Moreover, her untimeliness established lack of probable cause without needing to look at the substance of her claims. Both procedural and substantive bars are sufficient to establish lack of probable cause for a direct trust contest. As compared to malicious prosecution, the legislature’s unique definition of probable cause under the Probate Code intends a greater deterrent effect, i.e. forfeiture under a no contest clause.