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.
State 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.