California Case Offers Teeth to No Contest Provisions

In California, before January 1, 2010, thelaw regarding no contest provisions made it clear that no contest provisionswere enforceable. In 2010, the law changed making most no contest provisionsunenforceable. Under the new law, the only way a contestant would triggerdisinheritance is if he did not have probable cause to contest the will ortrust. Many lawyers believe that the probable cause threshold is similar to afrivolousness standard. The new no contest law applies to any instrument thatbecame irrevocable on or after January 1, 2001. One feature of the new law is asafety mechanism to help the harmful results of applying the law retroactively.

A California Court of Appeals case, Donkinv. Donkin, offers teeth to the enforceability a no contest clause. Theissue in the case was whether the 2009 or the new 2010 law would apply to theno contest clause in a trust instrument. Donkin highlights the safetymechanism, Probate Code section 3(h) which states: ‘If a party shows, and thecourt determines, that application of a particular provision of the new law orof the old law in the manner required by this section or by the new law wouldsubstantially interfere with the effective conduct of the proceedings or therights of the parties or other interested persons in connection with an eventthat occurred or circumstance that existed before the operative date, the courtmay, notwithstanding this section or the new law, apply either the new law orthe old law to the extent reasonably necessary to mitigate the substantialinterference.’

As a result, Donkin invoked abalancing test. The court reasoned because of the settlor’s intent, reliance onprior law, and some other factors, prior law should govern. This case allowstrial judges the flexibility to evaluate the circumstances and apply the properlaw. 

See John Milton, Rumors About the Death of “No Contest” Clauses Maybe Premature;Recent Case Offers Hope, JDSupra Law News, Feb. 11, 2013.  

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.