Will Contests, Standing, and No-Contest Clauses

A will contest may be brought only by an 'interested person,' and standing is a threshold the contestant must satisfy before the merits are reached. Probate Code §48 defines an interested person to include an heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent that may be affected by the proceeding, as well as a fiduciary representing such a person.

The functional test for contest standing is whether the challenger would gain financially if the will (or the challenged provision) were set aside — that is, whether she stands to take more by intestacy or under a prior will than she takes under the contested instrument. An heir who is disinherited by the offered will has standing because invalidating the will would let her inherit by intestacy. A beneficiary under an earlier will has standing if the later will reduces or eliminates her gift, because revoking the later instrument would revive or restore her larger share (subject to revival rules).

By contrast, a person who would take nothing whether or not the will is valid — a stranger, or an heir who is also excluded under any prior will and would not inherit by intestacy — lacks standing because she has no stake in the outcome. The court's determination of interest is made as of the time of the proceeding and may be reexamined, because the nature and extent of a person's interest can change with the litigation.

Standing also matters for no-contest analysis: only a beneficiary who actually takes something under the instrument has anything to lose from a no-contest clause, so a pure outsider with nothing under the will is not deterred by such a clause.

A contest must rest on a recognized ground attacking the validity of the will or a provision. The principal grounds are: defective execution (failure to satisfy §6110's writing, signature, and witnessing requirements, or §6111's holographic requirements); lack of testamentary capacity under §6100.5; insane delusion; undue influence (common-law or the §21380 statutory presumption); fraud in the execution or inducement; duress; mistake; revocation (the offered will was revoked by a later instrument or physical act); and forgery. The allocation of proof follows a burden-shifting sequence.

The proponent of the will bears the initial burden of establishing prima facie that the will was duly executed; a self-proving affidavit or attestation clause, and the testimony of the subscribing witnesses, ordinarily carries this burden and raises a presumption of due execution.

Once the proponent makes that prima facie showing, the burden shifts to the contestant to prove the grounds of contest — incapacity, undue influence, fraud, and the like — generally by a preponderance of the evidence, though the §21380 presumption (gifts to drafters, fiduciaries, and care custodians) shifts the burden to the proponent to rebut by clear and convincing evidence, and the confidential-relationship presumption of undue influence likewise shifts the burden once its predicate facts are shown.

A contest is ordinarily commenced either before the will is admitted (an opposition to probate) or, after admission, by a petition to revoke probate filed within the statutory period (typically 120 days after the order admitting the will to probate under §8270). The outcome of a successful contest depends on the ground: total incapacity, fraud in the execution, or improper execution voids the whole will, while insane delusion, fraud in the inducement, and undue influence often void only the affected gift, with the property passing under the remaining valid will or by intestacy.

A no-contest clause (in terrorem clause) is a provision that purports to penalize a beneficiary — usually by forfeiting that beneficiary's gift — if the beneficiary contests the instrument or takes specified actions to challenge it. California once enforced no-contest clauses broadly, but the law was overhauled effective January 1, 2010, and §§21310-21315 now sharply restrict enforcement, reflecting a strong public policy favoring access to the courts and the discovery of fraud and undue influence. Under §21311, a no-contest clause is enforceable against only three categories of challenge, and only as specified.

First and most importantly, it may be enforced against a 'direct contest' that is brought WITHOUT probable cause. A 'direct contest' is defined in §21310(b) as a contest that alleges the invalidity of the protected instrument or one of its terms on enumerated grounds — forgery, lack of due execution, lack of capacity, menace/duress/fraud/undue influence, revocation, or disqualification of a beneficiary under §6112 (interested witness), §21350, or §21380.

Second, a no-contest clause may be enforced against a pleading challenging a transfer of property on the ground it was not the transferor's property at death, but ONLY if the clause expressly provides for that application. Third, it may be enforced against the filing of a creditor's claim or prosecution of an action based on it, again ONLY if the clause expressly so provides. Any contest outside these categories — for example, a challenge to the appointment of a fiduciary, a petition to construe or interpret the instrument, or an action to determine the character of property — does NOT trigger forfeiture.

This narrow, enumerated scheme means that most ordinary probate disputes can be litigated without risking a beneficiary's gift.

The single most important limitation on no-contest clauses is the probable-cause safe harbor of §21311(b), which applies to direct contests. Even where a beneficiary brings a direct contest on an enumerated ground, the no-contest clause is enforceable only if the direct contest was brought WITHOUT probable cause. Section 21311(b) defines probable cause as existing if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.

This standard is forgiving to the contestant: a beneficiary who has a genuine, reasonable, fact-based suspicion of undue influence or incapacity can litigate a direct contest, lose, and still keep her gift, because the clause cannot be enforced where probable cause existed at filing. The practical effect is that no-contest clauses are largely toothless against good-faith direct contests and operate principally to deter frivolous or speculative challenges filed with no factual foundation. Several drafting and construction points follow.

No-contest clauses are strictly construed and not extended by implication beyond the §21311 categories; ambiguities are resolved against forfeiture. The clause must be in an instrument that became irrevocable, and it applies according to the law in effect when the contest is filed for instruments that became irrevocable on or after January 1, 2001 (with the 2010 statute governing contests filed on or after that date).

A beneficiary may also file a §21312-type proceeding (formerly a declaratory 'safe harbor' application, repealed in 2010 — under current law there is no advance ruling, so the beneficiary must assess probable cause before filing and bear the risk). For exam purposes, the dominant rule to state is that a California no-contest clause forfeits a gift only for a direct contest brought without probable cause, or for the two expressly-covered property/creditor challenges, and that the probable-cause safe harbor protects a reasonable, factually grounded contest.

Enforceability of a California No-Contest Clause (§21311)