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
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 We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example.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.
A few months ago, I wrote about the anti-SLAPP statute as a powerful defensive tool in California trust and estate litigation. Adding new light to the subject is a Sacramento-based appellate court’s decision in Greco v. Greco (2016) 2 Cal.App.5th 810.
The case narrows the ability of fiduciaries to bring motions to dismiss under the anti-SLAPP statute when they are sued for how they have spent trust and/or probate assets.
In heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother Bob may file a petition to enforce the no contest clause in the trust against Sally and thus seek to intimidate her.
Yet retaliatory claims can be radioactive for those who assert them given California’s “anti-SLAPP” statute, codified at Code of Civil Procedure section 425.16. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” The statute creates a “special motion to strike” frivolous claims that aim to chill the valid exercise of speech and petition rights. A petitioner faced with an anti-SLAPP motion quickly finds himself on the hot seat. If he lacks evidence to substantiate his claims, the court will dismiss them and require him to pay his opponent’s legal expenses.