No Contest Clause in California Wills

A will is meant to be the last word on how one wants his or her property to be disposed of upon their death. However, it is often difficult to please everyone with the way the property is divided. There may be a person in the deceased’s will who feels he should have received more than he was given, or he received promises of something other than what he was bequeathed. This person may seek to challenge the will. To avoid any challenges to a will, and to make sure that one’s final wishes are honored, one may include a no contest clause in their will. The clause provides that an individual will receive nothing if they choose to challenge the will. A no contest clause in California wills is also known as an in terrorem clause.

No Contest Clause in California Wills Is Valid

The California probate code recognizes a no contest clause in California wills and other estate-planning documents, and courts will enforce them when they are deemed valid. These clauses are defined as provisions in an otherwise valid will or trust document, the effect of which would punish a beneficiary for challenging the document in court. A no contest clause essentially gives a beneficiary the choice to either take what is given to them in the will or trust, or risk losing it all by contesting its provisions. It is a gamble for the beneficiary, who must decide whether the document is worth contesting.

Previous California law allowed a person seeking to challenge a will or trust to first ask the court if, by challenging the document, he or she would trigger the no-contest clause. That law was changed in 2010. Now, a challenger would need to go straight to court with no guarantee of how such an action would affect their claim.

There are three methods whereby a no contest clause in California wills may be challenged:

• Direct contest brought without probable cause;
• Pleadings in court challenging certain property transfers;
• Filing a creditor’s claim against the deceased’s estate.

In a direct contest, the beneficiary challenges the estate planning document on one or more of the following grounds:

• forgery;
• lack of due execution;
• lack of capacity;
• menace;
• duress;
• fraud;
• undue influence;
• revocation;
• disqualification of a beneficiary.

Note that, because of California’s community property laws, a person cannot include a no-contest clause that means to take away a spouse’s legal portion of an estate.

Create Your Estate Planning Documents

If you are considering preparing your estate documents and want to avoid the high cost of attorney’s fees, contact A People’s Choice for low-cost legal document help. Although we cannot give legal advice, A People’s Choice can help you in preparing all the required legal documents for your estate planning without having to hire a lawyer.