No Contest Clause Enforcement Determined Under Current Law

  The California Supreme Court concludes in Donkin v. Donkin that safe harbor proceedings filed before 2010 are not affected by the repeal of former Probate Code section 21320, which previously authorized safe harbor applications. With respect to substantive questions as to whether a claim triggers a no contest clause, pursuant to Probate Code section 21315, current law is applicable to all instruments which became irrevocable on or after January 1, 2001.

  Probate Code section 21311 generally limits the enforceability of no contest clauses to (1) direct contests brought without probable cause; (2) challenges to the transferor’s ownership of property at the time of the transfer, if expressly included in the no contest clause; and (3) creditor’s claims and actions based on them, if expressly included in the no contest clause. The effect of section 21311 is to make no contest clauses unenforceable unless a beneficiary’s action is covered by one of the three specified categories of contest.

  Section 21315 provides no exceptions and the Court refused to craft one given the clear, unambiguous language contained within the statutory scheme. Section 21311, subdivision (a)(2) concerning forced election challenges is clear: forced election challenges are not in violation of a no contest clause unless the no contest clause expressly provides for its application in forced election challenges.

  The Court also determined that the fairness exception under Probate Code section 3, subdivision (h), to the presumptive applicability of the current law to all instruments that became irrevocable after January 1, 2001, if application of the former law would compel a different conclusion as to enforceability of a no contest clause and it is established that the instrument which contained the no contest clause was drafted in reliance on the former law, is not applicable when application of the former law would yield the same conclusion regarding the unenforceability of a no contest clause.

  Former law would yield the same result in the case because former section 21305, subdivision (b) provided that notwithstanding anything to the contrary in any instrument, the following proceedings do not violate a no contest clause as a matter of public policy: “[a] pleading regarding the interpretation of the instrument containing the no contest clause or an instrument or other document expressly identified in the no contest clause.”

  A proposed pleading concerns the interpretation of an instrument when its allegations put in issue a provision or term of the instrument that is ambiguous and requires judicial interpretation. At its bottom, the court stated, the issue in Donkin involved a dispute regarding the proper interpretation of ambiguous provisions of an amended trust instrument, and therefore would not have been a contest under prior law, either.


  Mr. Daymude consults with clients and accepts cases involving the interpretation of testamentary instruments and petitions and objections in probate, including those which involve no contest provisions. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

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