The Key Case Unlocks No Contest Clause Litigation

A recent appellate decision provides a novel rationale for litigating no contest clauses that could be considered unenforceable under current law. Continue reading

Alas Poor Urick: SLAPP-stick Comedy Relieves Probate Court Drama

Updated 2/1/18: In Gaynor v Bulen (Jan. 23, 2018, D070907) 2018 Cal App Lexis 53, the court held that a petition alleging that trust assets were improperly used in probate litigation was not a cause of action arising from protected activity under the anti-SLAPP statute. Although the alleged breach of loyalty may have been carried out by the filing of probate petitions, the petitioning activity itself was not the basis of the claim.

Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Continue reading

No-Contest Clauses May Not Be the Deterrent You Think

ThinkstockPhotos-148073606State law changes enacted in 2010 have restricted the enforceability of no-contest clauses. Under Prob C §§21310–21311, a typical no-contest clause providing that an unsuccessful contestant gets nothing from an estate or trust is enforceable only against a “direct contest” brought without probable cause on specified grounds. And even if it is enforceable, a no-contest clause may not be an effective deterrent if the beneficiary thinks the amount at stake is outweighed by the benefit of a successful contest. Continue reading

Former Law Applies to No Contest Clause: Court Decision Would Enforce Unenforceable Clauses

Updated January 6, 2014: The California Supreme Court reversed in Donkin v Donkin on December 26, 2013. The court held that the no contest clause was unenforceable under current law and the proposed petition would not violate the no contest clause under former law.

Updated June 13, 2012: The California Supreme Court granted review in Donkin v Donkin on June 13, 2012 (S202210).

Talk about a Catch-22: By checking if a no contest clause in their parents’ trust applies under former law, the daughters actually made the clause applicable! The Second District Court of Appeal has recently made the odd holding that no contest clauses in trust documents that are unenforceable under current law can still be enforced. See Donkin v Donkin (Mar. 23, 2012, B228704) 2012 Cal App Lexis 340.

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