You are no doubt honored to have any interest in the estate of a family member or friend in San Jose. At the same time, however, you may feel troubled by the terms stipulating what that interest actually is. Many in this same position have come to see us here at Temmerman, Cilley, Kohlmann & Norcia, LLP worried that if they challenge the will governing the estates that they are party to they will invoke any no-contest clauses contained therein. This prompts the question of whether no-contest clauses are even enforceable in California.
A no-contest clause essentially threatens to disinherit you if you challenge any of the terms of a will. Some might argue that the inclusion and enforcement of such clauses should be left entirely up to the settlor of a will. However, they may preclude you or any other interested party from challenging its terms when you have legitimate reasons for doing so (which, when viewed from the opposite end of the spectrum, may indeed encourage people to try to take advantage of a person whose physical or mental deficiencies make them easy targets for manipulation).
For this very reason, California State Senate Bill 1264 was enacted. This limits no-contest clause enforceability to the following scenarios:
- If you initiate a will contest without cause
- If you initiate a pleading arguing that property transferred by the estate’s was never the settlor’s to transfer to begin with
- If you initiate (or choose to prosecute) a creditor’s claim
For the latter two elements listed above, it does not matter whether probable cause exists to press the issue or not; the no-contest clause will still be enforced if the will calls for it.
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