California Probate Code Section 21320 - Interpretation
Section 21320 authorizes a declaratory relief proceeding whereby the beneficiary of a trust that either is or has become irrevocable may obtain an advance ruling on whether a particular legal challenge would be a contest. (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1427.)
Such an application is not itself a contest. ( 21320, subd. (b).) However, the application for an advance ruling may not seek a determination of the merits of the legal challenge. ( 21320, subd. (c); Genger v. Delsol, supra, 56 Cal.App.4th at p. 1427.)
Under section 21305, subdivision (b)(9), for documents that become irrevocable on or after January 1, 2001, "notwithstanding anything to the contrary in any instrument," a "pleading regarding the interpretation of the instrument containing the no contest clause" does "not violate a no contest clause as a matter of public policy."
Under section 21305, subdivision (a)(3), for instruments executed on or after January 1, 2001, "[a] challenge to the validity of an instrument, contract, agreement, beneficiary designation, or other document, other than the instrument containing the no contest clause" does "not constitute a contest unless expressly identified in the no contest clause as a violation of the clause." An "instrument" is defined as "a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer of property." ( 45.)
In Estate of Rossi (2006) 138 Cal.App.4th 1325 [42 Cal. Rptr. 3d 244], the court held that the section 21305, subdivision (a)(3), safe harbor applied to a proposed petition to challenge a trust amendment. This amendment was an instrument that was separate from the instrument containing the no contest clause and did not include its own no contest clause.
Additionally, the no contest clause at issue failed to expressly identify the action as a violation. (138 Cal.App.4th at p. 1338.)
Similarly, in Perrin v. Lee (2008) 164 Cal.App.4th 1239, a proposed challenge to two trust amendments based on lack of capacity and undue influence was found to fall within the section 21305, subdivision (a)(3), safe harbor despite the fact that each amendment stated that it confirmed and ratified the trust. the court held that the proposed petition constituted a challenge to the validity of an instrument other than the instrument containing the no contest clause. (164 Cal.App.4th at p. 1249.)