No Contest Clauses
Trusts and Wills can contain no contest clauses which purport to disinherit a person if he or she engages in specified activities. If the person contests a Trust or Will and is successful in the contest, then the no contest clause will fail.
If the person was given nothing under the Trust or Will, he or she will have nothing to lose if he or she contests. If the person was given a modest gift, the person will weigh the possible loss of the gift against what he or she would gain if successful.
California has a relatively new law regarding no contest clauses which narrows the scope of activities that can be proscribed by a no contest clause. A person may decide that the no contest clause does not cover the proposed activity, or that, even if it does, the no contest clause in the document is unenforceable.
California previously had a procedure by which a potential contestant could ask the court whether or not a proposed petition would violate the no contest clause in the document. This procedure is no longer available. Thus potential contestants who believe their proposed action is either outside the scope of the no contest clause or is unenforceable under California’s law must take the risk that they are wrong, ie that they may lose their gift if they bring an action and lose.