California Probate Code Section 21320 - Example Case

In Estate of Ferber (1998) 66 Cal.App.4th 244, the beneficiary of a will brought a Probate Code section 21320 action to determine whether a proposed petition to remove the executor would violate the will's no contest clause. Although a provision of the clause expressly disinherited any beneficiary who challenged the appointment of the executor, the trial court held the provision violated public policy and was unenforceable. The executor appealed, and argued the holding in Genger should apply generally to prohibit the court in a section 21320 proceeding from considering the merits of the proposed action (regardless of whether the proposed action involved section 21306 or 21307). The appellate court agreed in principle. "This makes sense. Otherwise, the summary procedure provided by section 21320 could be used to allow the very form of challenge and protracted litigation the testator sought to prevent." (Ferber, supra, 66 Cal.App.4th at p. 251.) But the court created an exception for claims a provision of the no contest clause violates public policy when the claim can be resolved as a matter of law. (Ibid.)