“Please don’t contact the other attorney because I do not want to contest the trust… I just want some information.”
Some of you read that and laugh. Others don’t! I know that a lot of you are not laughing because I get this, or similar, comments A LOT when talking about no-contest clauses in California wills and trusts.
What does it mean to CONTEST a will or trust then? Well, it’s certainly ok to ask questions of the trustee, the executor or the attorney. There is no law against asking questions. Additionally, there are often additional steps that can be taken before you get to the point of contesting.
For example asking the trust administration lawyer for a copy of the trust or even petitioning the probate Court for a copy is allowed. Or petitioning the Court for an accounting if you aren’t given one when you should be. Or even petitioning to remove the trustee or executor as long as it’s in good faith that you bring the action. There is a long list of additional actions that you CAN take without causing a conflict.
In short you can do almost anything, as long as it’s reasonable in nature, without violating the no contest clause. You can ask questions, send letters, and even bring many Court petitions. A petition only becomes a contest if it is a DIRECT CONTEST and brought WITHOUT PROBABLE CAUSE. I say reasonable is similar to probable cause though technically they are different. The bottom line is don’t file a contest without some reasonable evidence that reasonably indicates there is a problem worthy of contesting!
I have pasted California probate code 21300 below to help you out.
Let me know if you have a question about what is a contest… or not a contest! -John
As used in this part:
(a)”Contest” means any action identified in a “no contest clause” as a violation of the clause. The term includes both direct and indirect contests.
(b)”Direct contest” in an instrument or in this chapter means a pleading in a proceeding in any court alleging the invalidity of an instrument or one or more of its terms based on one or more of the following grounds:
(2)Lack of capacity.
(9)Lack of due execution.
(c)”Indirect contest” means a pleading in a proceeding in any court that indirectly challenges the validity of an instrument or one or more of its terms based on any other ground not contained in subdivision (b), and that does not contain any of those grounds.
(d)”No contest clause” means a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the court.