The New No Contest Law: New Challenges for Trusts Aid Estates Attorneys—appendix

• Jurisdiction: California,United States
• Publication year: 2008
• Citation: Vol. 14 No. 3

THE NEW NO CONTEST LAW: NEW CHALLENGES FOR TRUSTS AID ESTATES ATTORNEYS—APPENDIX

Senate Bill No. 1264

CHAPTER 174

An act to add Part 3 (commencing with Section 21310) to Division 11 of, and to repeal Part 3 (commencing with Section 21300) of Division 11 of, the Probate Code, relating to wills and trusts.

[Approved by Governor July 22, 2008. Filed with Secretary of State July 22, 2008.]

LEGISLATIVE COUNSEL'S DIGEST

SB 1264, Harman. Wills and trusts: no contest clauses.

Existing law, in relation to wills, trusts, and other instruments, defines and regulates no contest clauses, which are provisions in otherwise valid instruments that, if enforced, penalize beneficiaries if the beneficiaries file a contest with the court. Existing law provides that a no contest clause in a will or a trust is generally enforceable and defines a "contest" and "direct contest" in this regard. Existing law provides that certain actions do not constitute a contest unless expressly identified in the no contest clause as a violation. Existing law exempts certain contests from the enforcement of the no contest clause under specified circumstances, including if there is reasonable cause to believe that instrument has been revoked. Existing law permits a beneficiary to apply to a court for a determination of whether a particular motion, petition, or other act by the beneficiary would be a contest within the terms of a no contest clause.

This bill, beginning January 1, 2010, would revise, recast, and clarify these provisions. The bill would limit the application of a no contest clause to specific contests. The bill would redefine "direct contest," and would provide that a no contest clause may be enforced against a direct contest only when it is brought without probable cause, which the bill would define for these purposes. The bill would delete the provisions regarding the authority of a beneficiary to apply to a court for a determination regarding a no contest clause, as described above.

The people of the State of California do enact as follows:

SECTION 1. Part 3 (commencing with Section 21300) of Division 11 of the Probate Code is repealed.

SEC. 2. Part 3 (commencing with Section 21310) is added to Division 11 of the Probate Code, to read:

PART 3. NO CONTEST CLAUSE

21310. As used in this part:

(a) "Contest" means a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no contest clause is enforced.

(b) "Direct contest" means a contest that...