Two Easy Ways to Trigger a No Contest Clause by Accident

• Publication year: 2014
• Author: By Noël Margaret Lawrence, Esq.*

TWO EASY WAYS TO TRIGGER A NO CONTEST CLAUSE BY ACCIDENT

By Noël Margaret Lawrence, Esq.¹*

I. INTRODUCTION

There are circumstances under which a client in consultation with his lawyer will make a conscious decision to contest a will or a trust, knowing that an unsuccessful contest will result in loss of a gift under the contested instrument. The client proceeds nonetheless because he hopes that the instrument will be struck down, and he will inherit under a different, more favorable instrument. The implications of this course of action are usually obvious to attorney and client alike.

By contrast, consider the possibility of taking an action that results in an accidental contest, i.e., one that was not intended or anticipated by the attorney or the client. After the enactment of Senate Bill 1264 of 2008, operative January 1, 2010, practitioners might feel a false sense of security that certain types of actions will not result in the enforcement of a no contest clause to penalize the client.² Obviously, if a practitioner fails to warn a client that the client's proposed action constitutes—or could constitute—a contest, and that failure to advise the client results in loss to the client, the attorney has incurred potential liability to the client. It is the kind of liability that will be easy for a jury to understand when the client brings suit against his lawyer. This article will describe some less-than-obvious ways to contest a will or trust for practitioners to be aware of.

II. RELEVANT LAW

With respect to "direct contests", Probate Code section 21311, subdivision (a)(1), provides that a no contest clause shall only be enforced against a direct contest "that is brought without probable cause."³ Defining the types of contests that are "direct contests", Probate Code section 21310, subdivision (b) provides, in relevant part, as follows:

(b) "Direct contest" means a contest that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of the following grounds:

(1) Forgery.
(2) Lack of due execution.
(3) Lack of capacity.
(4) Menace, duress, fraud, or undue influence.
(5) Revocation of a will pursuant to Section 6120, revocation of a trust pursuant to Section 15401, or revocation of an instrument other than a will or trust pursuant to the procedure for revocation that is provided by statute or by the instrument.
(6) Disqualification of a beneficiary under Section 6112, 21350, or 21380.

Limiting the enforceability of a no contest clause in the case of certain types of contests, Probate Code section 21311, provides, in relevant part, as follows:

(a) A no contest clause shall only be enforced against the following types of contests:

(1) A direct contest that is brought without probable cause.
...

(b) For the purposes of this section, probable cause exists if, at the time of filing a contest, 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 other words, relating to "direct contests," a no contest clause may only be enforced against contests brought without probable cause.

Probate Code section 21313 provides as follows: "This part is not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extent this [Part 3 of Division 11 of the Probate Code] does not apply."

III. CONTESTING AN INSTRUMENT BY ACCIDENT

A. Losing Probable Cause While Case is Pending.

Under the statutes quoted above, what is important in terms of determining whether probable cause exists for the filing of a direct contest are the facts known at the time of the filing of the contest. But what if, after the filing of the pleading initiating a contest, further investigation and/or discovery reveals that a reasonable person would no longer believe that there is a reasonable likelihood that the requested relief will be granted? In this author's view, the contest should be dismissed under such circumstances.⁴ Failure to dismiss the contest prior to the filing of additional pleadings could result in the contestant having to defend against the enforcement of a no contest clause on the ground that the probable cause existing at the time the contest was initiated should insulate further actions taken in the case, even after the loss of probable cause.⁵

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B. Broader Common Law Rules Regarding Enforcement...