Preventing challenges to wills and trusts

People hope that their wills, trusts and other estate documents will be followed after they die. But beneficiaries and family member often mount legal challenges. You may anticipate these actions in your estate planning by considering the use of a no-contest clause in your documents.

Purpose

Under California law, these clauses are intended to uphold the decedent’s wishes and deter litigation. The law governs all instruments which became irrevocable after Jan. 1, 2001.

Through the threat of disinheritance, no-contest clauses are designed to discourage unsatisfied beneficiaries from contesting a will, a trust, a designated death beneficiary form or other protected instrument. A no-contest clause provides no protection against a disinherited heir who may be deterred only by the costs and inconvenience of a legal action.

Prohibited contests

California law covers no-contest clauses for three contests. The first is a direct contest that is brought without probable cause. The second contest is a pleading challenging a property transfer on the grounds that the property was not owned by the transferor when it was transferred. The last contest is the filing of a creditor’s claim or the prosecution based on that claim.

The second and third contests apply if the clause specifically includes them as a no-contest violation. The probable cause defense is inapplicable in these violations.

Direct contest

There must be a direct contest. This is a claim that an estate instrument is invalid because of forgery, lack of due execution, revocation, beneficiary disqualification or menace, duress, fraud, or undue influence.

The law is not intended to block valid claims and if there was probable cause for the challenge. Probable cause exists if there is a reasonable likelihood that the relief requested in the challenge will be granted following additional investigation or discovery.

Protected instruments

These typically include a will, trust or other legal instrument containing the no-contest clause and any other legal document that is identified in that instrument that is in existence when the no-contest document was signed.

Trust amendments, undated beneficiary death beneficiary forms and other documents signed later must explicitly contain that clause or incorporate clauses in existing documents.

Use

These clauses may be inappropriate in some circumstances and have unintended consequences. No-contest clauses should be considered if there is unequal division of the estate among the family or if a spouse is receiving less than their normal share.

An attorney may provide options on no-contest clauses and other estate issues. They can also draft documents and represent parties in court.