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Challenging Wills or Trusts

Part of our estate planning caseload at Law Office of Scott C. Soady, A Professional Corporation are cases in which a will or a trust is being questioned or challenged. Typical factual scenarios are where an heir or a beneficiary has been disinherited or their share reduced because of “death bed” changes which may have resulted from undue influence, fraud, or duress. Most wills or trusts contain a clause known as a “no contest clause.” “No contest” clauses are commonly found in wills and trusts to discourage someone from challenging the will or trust. Typically, the language is that if anyone contests the will or trust, that individual will take nothing.

Existing law however, allows a beneficiary or other individual to file a petition with the court (called a Safe Harbor petition) asking the court to determine whether a particular challenge fits within the definition of a “contest.” If the court rules that it doesn’t constitute a contest, then the will or trust can be challenged in spite of the “no contest” clause.

Last Year the California legislature passed a bill which was signed by Governor Schwarzenegger that will change the law regarding “no contest” clauses. Under the new law which will take effect in January 2010, the applicability of the “no contest” clauses will be limited to specific circumstances. The new law will eliminate Safe Harbor petitions and will also provide that a “no contest” clause will only be enforceable to defeat a will or a trust contest if brought without probable cause.

The purpose of the legislation was to permit the free access to justice by allowing such clauses to thwart litigation only in limited circumstances. It remains to be seen whether the new legislation will increase or decrease will contests and trust litigation. If we can assist you with your litigation matter in the probate or trusts area or if you have questions about no contest clauses, please contact us for a complimentary consultation.

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