Are No Contest Clauses Enforceable in California ?
Former Probate Code section 21320, subdivision (a), provides a "safe harbor for beneficiaries who seek a judicial determination whether a proposed legal challenge would be a contest, and that is the only issue to be decided when such an application is made." (Estate of Davies (2005) 127 Cal.App.4th 1164, 1173.)
"An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions provided therein. In essence, a no contest clause conditions a beneficiary's right to take the share provided to that beneficiary under such an instrument upon the beneficiary's agreement to acquiesce to the terms of the instrument. " (Burch v. George (1994) 7 Cal.4th 246 at p. 254; Donkin v. Donkin (2013) 58 Cal.4th 412 at p. 422.)
No contest clauses, whether in wills or trusts, are valid in California. (Id.)
Further, no contest clauses "are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator's intent. " (Burch, supra, 7 Cal.4th at pp. 254-255, fn. omitted; Donkin, supra, 58 Cal.4th at p. 422.)
"'Whether there has been a "contest" within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used.' 'The answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purposes that the testator sought to attain by the provisions of his will.' Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the testator's intentions that control, and a court 'must not rewrite the testator's will in such a way as to immunize legal proceedings plainly intended to frustrate the testator's unequivocally expressed intent from the reach of the no-contest clause.' " (Burch, supra, 7 Cal.4th at pp. 254-255, other alterations in the original; Johnson v. Greenelsh (2009) 47 Cal.4th 598, 604.)