No-Contest Clauses in California Trusts: Enforceability and Strategy

No-contest clauses (also called "in terrorem" clauses) are provisions that disinherit anyone who contests a trust. These clauses are meant to discourage litigation, but California law significantly limits their enforcement. Understanding when no-contest clauses apply, the "probable cause" exception, and how to navigate them is critical for anyone considering a trust challenge.

This guide covers everything you need to know about no-contest clauses in California.

What Is a No-Contest Clause?

Definition

No-contest clause: Trust provision that disinherits any beneficiary who contests the trust or challenges trustee actions.

Also called:

• In terrorem clause ("to frighten")
• Forfeiture clause
• Penalty clause

Typical Language

Example clause: "If any beneficiary of this trust contests or attacks this trust or any of its provisions, or aids anyone else in doing so, that person shall receive nothing from this trust and shall be deemed to have predeceased me."

Purpose

Settlor's goals:

• Discourage frivolous challenges
• Prevent family litigation
• Preserve estate for intended beneficiaries
• Reduce legal fees eating estate
• Ensure plan implemented as written

California Law on No-Contest Clauses

Probate Code §21311

California's restrictive rule:

No-contest clause is enforceable ONLY if contest brought without probable cause.

If probable cause exists: No-contest clause NOT enforced

This is huge protection for beneficiaries with legitimate concerns

What Changed in 2010

Old law (pre-2010):

• No-contest clauses broadly enforced
• Difficult to challenge trusts
• Even reasonable challenges triggered forfeiture

New law (2010-present):

• Probable cause exception
• Encourages legitimate challenges
• Protects beneficiaries who act reasonably

Much more beneficiary-friendly than prior law

The Probable Cause Standard

Definition

Probate Code §21311(b):

"Probable cause" exists if, at the time of filing the contest, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood of success.

Objective standard - What would reasonable person think?

Factors Courts Consider

In determining probable cause:

1. Facts known at time of filing (not discovered later)
2. Reasonable belief of success (not certain success)
3. Good faith of contestant
4. Evidence available before filing
5. Legal advice received

Key: Assessed at time of filing, not after trial

What Constitutes Probable Cause

Probable cause exists when:

For capacity challenge:

• Medical records showing dementia/Alzheimer's
• Doctor's diagnosis of incapacity
• Witnesses to confusion
• MMSE scores showing impairment
• Reasonable belief incapacity existed

For undue influence:

• Evidence of isolation
• Confidential relationship
• Sudden trust changes
• Disproportionate benefit
• Suspicious circumstances

For fraud:

• Evidence of misrepresentations
• Witnesses to false statements
• Documentary proof of deception

Don't need to win - Just need reasonable grounds at filing

Examples

Example 1 - Probable Cause Exists:

• Father diagnosed with Alzheimer's 2 years before death
• Medical records show severe cognitive decline
• MMSE score 10/30 (severe impairment)
• Trust amended 1 month before death
• Amendment benefits caregiver Probable cause: Yes - Reasonable challenge

Example 2 - NO Probable Cause:

• Mother mentally sharp, no medical issues
• Trust consistent with prior statements
• Prepared by experienced attorney
• Daughter contests because "it's not fair"
• No evidence of capacity/influence issues Probable cause: No - Frivolous challenge

Example 3 - Probable Cause (close call):

• Father age 90, some memory issues
• No formal dementia diagnosis
• Trust prepared by attorney father trusted for years
• Provisions favor one child over others
• Some family conflict Probable cause: Probably - Enough for reasonable belief

What Actions Trigger No-Contest Clause

Direct Trust Contest

Clear triggers:

• Petition to invalidate entire trust
• Petition to invalidate specific provisions
• Challenge to trust amendments
• Claim trust procured by fraud/undue influence

These clearly contest trust

Trustee Removal Petitions

California law:

• Petitions to remove trustee do NOT trigger no-contest clause
• Even if trustee is beneficiary
• Public policy: Need to hold trustees accountable

Exception: If removal petition is a "de facto" contest of trust validity

Requests for Information

Do NOT trigger:

• Request for copy of trust
• Request for accounting
• Questions about administration
• Request for beneficiary information

California law protects information requests

Interpretation Petitions

Usually do NOT trigger:

• Petition to interpret ambiguous provisions
• Petition for instructions
• Clarification of trustee powers

Not challenging validity - Asking court to construe

Challenges to Trust Administration

Generally do NOT trigger:

• Challenge to improper distributions
• Objection to trustee fees
• Challenge to investment decisions
• Claims trustee breached fiduciary duties

Gray area: Depends on whether challenging trust itself or just administration

Strategic Considerations

Before Filing Contest

Critical analysis:

1. Do you have probable cause?

• Consult attorney immediately
• Review medical records
• Interview witnesses
• Assess evidence
• Get legal opinion

2. Is no-contest clause in trust?

• Review trust document
• Check all amendments
• Confirm current version

3. What do you stand to lose?

• How much are you left in trust?
• What would you forfeit?
• Is contest worth risk?

4. What could you gain?

• If trust invalidated, what do you receive?
• Prior trust terms
• Intestacy share
• Cost-benefit analysis

Cost-Benefit Analysis

Example calculation:

Current trust leaves you: $100,000

Prior trust would give you: $500,000

If contest successful: Gain $400,000

If no probable cause found: Lose $100,000

Attorney assessment: 70% chance probable cause

Analysis:

• Expected value: ($400K × 70%) - ($100K × 30%) = $280K - $30K = $250K
• Worth pursuing if probable cause likely

Risk Mitigation Strategies

How to reduce risk:

1. Get legal opinion

• Attorney letter stating probable cause exists
• Shows good faith
• Evidence of reasonableness

2. Mediate first

• Attempt settlement before filing
• Show good faith efforts
• May avoid triggering clause

3. Request court determination

• Petition court for determination of probable cause
• Before filing contest
• Certainty before risking forfeiture

4. Settlement with waiver

• Negotiate settlement including waiver of no-contest clause
• All parties agree
• Safe from forfeiture

Common Scenarios

Scenario 1: Strong Probable Cause

Facts:

• Mother diagnosed with dementia
• Medical records clearly document progression
• Trust amended during late stage
• Amendment benefits caregiver
• Prior trust benefited children equally

Analysis:

• Clear probable cause
• Medical evidence strong
• Contest won't trigger no-contest clause
• Safe to contest

Scenario 2: Weak Case

Facts:

• Father mentally competent
• Trust prepared with attorney
• Logical provisions
• No evidence of undue influence
• Contestant just thinks it's unfair

Analysis:

• No probable cause
• Would trigger no-contest clause
• Don't contest - will lose inheritance

Scenario 3: Gray Area

Facts:

• Mother age 88, some confusion
• No formal diagnosis
• Trust changed recently
• Benefits one child more
• Some suspicious circumstances

Analysis:

• Probable cause arguable
• Close call
• Get legal opinion
• Consider settlement
• Risky to contest

Burden of Proof

Who Proves What

If contest filed:

Contestant must prove:

• Grounds for invalidity (capacity, undue influence, etc.)

Proponent must prove (if no-contest clause invoked):

• No probable cause existed
• Contestant acted unreasonably
• Forfeiture should apply

Burden on proponent to prove no probable cause

Judicial Determination of Probable Cause

Pre-Contest Determination

Option: Petition court for determination before filing contest

Process:

1. File petition requesting probable cause determination
2. Present evidence you've gathered
3. Court evaluates whether probable cause exists
4. Court issues ruling

Benefits:

• Know risk before contesting
• If probable cause found, safe to proceed
• If not found, can decide not to contest

Downside:

• Tips hand to opponent
• Reveals evidence early
• Additional legal fees

Post-Contest Determination

More common:

• File contest
• If no-contest clause invoked
• Court determines probable cause as part of contest

Timing: Usually decided before trial on contest merits

Exceptions and Limitations

What No-Contest Clauses Can't Do

Cannot penalize:

• Information requests (accounting, trust copy)
• Trustee removal petitions
• Good faith interpretation requests
• Settlement negotiations

California law protects these activities

Multiple Beneficiaries

If some contest, others don't:

• Only contestants face forfeiture
• Non-contesting beneficiaries unaffected
• Can create family divisions

Minors and Incompetents

Special protection:

• Guardians can contest on behalf of minors
• Conservators for incompetent adults
• Probable cause standard still applies
• But consider ward's best interests

Drafting No-Contest Clauses

For Estate Planning Attorneys

Effective no-contest clauses:

Should include:

• Clear forfeiture language
• What actions trigger clause
• Exceptions for reasonable inquiries
• Probable cause acknowledgment

Should NOT:

• Attempt to prohibit information requests
• Bar legitimate trustee challenges
• Violate public policy

Example well-drafted clause:

"If any beneficiary contests or attacks this trust or its provisions, or aids anyone in doing so, without probable cause (as defined by California law), that person shall receive nothing under this trust and shall be treated as having predeceased me. This clause shall not apply to requests for information, petitions for court instructions about trust interpretation, or petitions to remove a trustee."

Conclusion

No-contest clauses in California trusts are enforceable only if the contest is brought without probable cause. This protection allows beneficiaries with legitimate concerns to challenge trusts without fear of disinheritance. Understanding probable cause, assessing your evidence, and consulting with an attorney before filing are essential to navigating no-contest clauses successfully.

Key takeaways:

• No-contest clauses only enforced if no probable cause
• Probable cause = reasonable belief of success at time of filing
• Medical evidence and witness testimony establish probable cause
• Information requests don't trigger no-contest clauses
• Cost-benefit analysis essential before contesting
• Get legal opinion on probable cause before filing
• Consider pre-contest court determination
• 2010 law change protects legitimate challenges

If you're considering contesting a trust with a no-contest clause, consult an experienced attorney immediately to assess probable cause and minimize risk.

Related Articles

Learn more about trust contests and no-contest clauses:

• Trust Contest California: Grounds and Process - Complete guide to contesting a trust including legal grounds, standing requirements, burden of proof, and litigation process.

• Undue Influence in California Trusts - How to prove undue influence using the four-element test, vulnerability factors, and compelling evidence.

• Lack of Capacity Trust Contest California - Proving mental incapacity with medical records, expert testimony, and capacity standards.

• Trust Mediation and Settlement California - Settlement strategies when evaluating probable cause and litigation risks with no-contest clauses.

• Trust Litigation vs Probate Litigation California - Compare trust and probate contests to determine best strategic approach for your situation.

Need Help With No-Contest Clause Issues?

Our experienced trust litigation attorneys can evaluate whether you have probable cause to contest a trust and advise on strategies to minimize forfeiture risk while protecting your inheritance rights.

Contact us for a confidential consultation about your no-contest clause concerns.

This article is for informational purposes only and does not constitute legal advice. No-contest clause issues are highly fact-specific and require careful legal analysis. Consult with a qualified California trust litigation attorney about your specific situation.