In 2010, California’s no-contest clause probate code provisions were amended, limiting the enforceability of no-contest clause provisions. No-contest clauses have been used to discourage unhappy relatives, girl/boy friends, second spouses, and others from challenging a will (or trust.) If a challenge is brought, the heir stands to lose any inheritance he or she would have otherwise received.
For example, Janey received an inheritance of $50,000 under Grandma Becky’s will; but, Janey thought she should have received more; she brings a will contest, challenging the validity of Grandma Becky’s will. In the past and under these circumstances, if the will contained a no-contest clause, Janey would forfeit her $50,000 inheritance.
Under current California law, the scope of no-contest clauses, even if present in a will or trust, has been reduced and apply only to a “direct contest” without “probable cause.” In other words, if an heir challenges a will or trust and has probable cause to do so, the no-contest clause is NOT enforceable.
The California Probate Code (§ 21310) defines “direct contest” as any contest that alleges the invalidity of a will or trust (or one or more provisions thereof) based on the following grounds: (a) forgery; (b) lack of due execution; (c) lack of capacity; (d) menace, duress, fraud or undue influence; (e) revocation; and (f) disqualification of a beneficiary.
The California Probate Code (§ 21311) defines “probable cause” as existing if the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.
In our example, if Janey can show that Grandma Becky was unduly influenced as to the terms of her will by Cousin Rick or that Cousin Rick substituted a page of the will, changing Janey’s inheritance she won’t lose her $50,000 inheritance when she contests the will.
The 2010 California probate code law applies to all wills or trusts which became irrevocable, meaning that they can’t be changed, on or after January 1, 2001. A will and trust become irrevocable upon the testator or trustmaker’s death or disability.
To determine whether it is in your best interest to challenge a will or trust, consult with a qualified estate planning – probate attorney. Please feel free to read more about estate planning or contact our office at (858) 792-5988 for a free attorney consultation.