This blog has previously mentioned the most common question we hear when people find out we work in probate litigation: “What can I do to make sure my family doesn’t fight over my property after I die?” Because I am a Fundamentally Honest Person (FHP for short!), I usually tell them the truth: “Nothing, really.”
There are a few standard questions I almost always get when people find out that I work in probate litigation. “Do people call you right away when their relatives die?” “Isn’t that tough to deal with, emotionally?” And most frequently, “What can I do to make sure no one challenges my estate plan after I
No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument.
Yet the probable cause safe harbor may disappear if the contest is untimely. That’s the upshot of Meiri v. Shamtoubi (2022) 81 Cal.App.5th 606, a Court of Appeal opinion issued last week.
Suing the suer is a common strategy in California civil litigation. A special motion to strike, known as an anti-SLAPP motion, can be a powerful weapon against retaliatory litigation. We have explained the use of such motions in trust and estate disputes. More specifically, we have explored their application to petitions to enforce no contest
Tracy M. Potts has nearly three decades of experience in California with estate planning, administration and litigation. A Texas native, she earned her law degree from Southern Methodist University School of Law. Her leadership experience includes chairing the Executive Committee of the State Bar of California, Trusts and Estates Section, as well as the Sacramento County Bar Association, Probate and Estate Planning Section. She is a certified specialist in estate planning, trust, and probate by the State Bar of California, Board of Legal Specialization. She also is a fellow of the The American College of Trust and Estate Counsel.
Tracy’s law firm, Legacy Law Group, operates from the Natomas area of Sacramento. I sat down with Tracy at her office in February 2020 to discuss estate planning and dispute avoidance.
No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an
No contest clauses are an ever-evolving area of the probate law in California. The Court of Appeal further refined the rules governing no contest clauses in a decision issued last week, Aviles v. Swearingen (2017) 16 Cal.App.5th 485. In brief, in order for a no contest clause to apply to a trust amendment, the no contest clause must be stated in the amendment or the amendment must expressly reference the no contest clause set forth in a prior document.
The takeaway from the case for estate planners is that if your client wants a no contest clause, then you must mention the no contest clause in every trust amendment that you draft for the client. It is not good enough to simply include a no contest clause in the client’s trust and then refer back to that trust, generally, in later amendments. Each subsequent amendment must either contain its own no contest clause or must expressly reference the no contest clause of the original trust instrument.
California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder. Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses.
The opinion reminds California trust and estate counsel to be cautious when using petitions to attack the court filings of other parties. At the same time, the opinion demonstrates that a well-conceived attack on an adversary’s filing ultimately should not fall to an anti-SLAPP motion, even if it takes an appellate court to set things right.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” To discourage and weed out such suits, the Legislature created a special procedure to challenge them. Last year we wrote about the use of anti-SLAPP motions as a defensive tool in trust and estate litigation. We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example. With Urick, we now have published authority in California for guidance.
One of the most dramatic areas of California trust and estate litigation is no contest clauses. No contest clauses bring a made-for-tv excitement to the practice of trust and estate law because of the risk of disinheritance. Yet such clauses are widely misunderstood, even among attorneys.