BILL NUMBER: SB 1264 CHAPTERED
BILL TEXT
CHAPTER 174
FILED WITH SECRETARY OF STATE JULY 22, 2008
APPROVED BY GOVERNOR JULY 22, 2008
PASSED THE SENATE JULY 2, 2008
PASSED THE ASSEMBLY JUNE 23, 2008
AMENDED IN ASSEMBLY JUNE 18, 2008
AMENDED IN SENATE APRIL 15, 2008
AMENDED IN SENATE MARCH 24, 2008
INTRODUCED BY Senator Harman
FEBRUARY 19, 2008
An act to add Part 3 (commencing with Section 21310) to Division
11 of, and to repeal Part 3 (commencing with Section 21300) of
Division 11 of, the Probate Code, relating to wills and trusts.
LEGISLATIVE COUNSEL'S DIGEST
SB 1264, Harman. Wills and trusts: no contest clauses.
Existing law, in relation to wills, trusts, and other instruments,
defines and regulates no contest clauses, which are provisions in
otherwise valid instruments that, if enforced, penalize beneficiaries
if the beneficiaries file a contest with the court. Existing law
provides that a no contest clause in a will or a trust is generally
enforceable and defines a "contest" and "direct contest" in this
regard. Existing law provides that certain actions do not constitute
a contest unless expressly identified in the no contest clause as a
violation. Existing law exempts certain contests from the enforcement
of the no contest clause under specified circumstances, including if
there is reasonable cause to believe that instrument has been
revoked. Existing law permits a beneficiary to apply to a court for a
determination of whether a particular motion, petition, or other act
by the beneficiary would be a contest within the terms of a no
contest clause.
This bill, beginning January 1, 2010, would revise, recast, and
clarify these provisions. The bill would limit the application of a
no contest clause to specific contests. The bill would redefine
"direct contest," and would provide that a no contest clause may be
enforced against a direct contest only when it is brought without
probable cause, which the bill would define for these purposes. The
bill would delete the provisions regarding the authority of a
beneficiary to apply to a court for a determination regarding a no
contest clause, as described above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Part 3 (commencing with Section 21300) of Division 11
of the Probate Code is repealed.
SEC. 2. Part 3 (commencing with Section 21310) is added to
Division 11 of the Probate Code, to read:
PART 3. No Contest Clause
21310. As used in this part:
(a) "Contest" means a pleading filed with the court by a
beneficiary that would result in a penalty under a no contest clause,
if the no contest clause is enforced.
(b) "Direct contest" means a contest that alleges the invalidity
of a protected instrument or one or more of its terms, based on one
or more of the following grounds:
(1) Forgery.
(2) Lack of due execution.
(3) Lack of capacity.
(4) Menace, duress, fraud, or undue influence.
(5) Revocation of a will pursuant to Section 6120, revocation of a
trust pursuant to Section 15401, or revocation of an instrument
other than a will or trust pursuant to the procedure for revocation
that is provided by statute or by the instrument.
(6) Disqualification of a beneficiary under Section 6112 or 21350.
(c) "No contest clause" means a provision in an otherwise valid
instrument that, if enforced, would penalize a beneficiary for filing
a pleading in any court.
(d) "Pleading" means a petition, complaint, cross-complaint,
objection, answer, response, or claim.
(e) "Protected instrument" means all of the following instruments:
(1) The instrument that contains the no contest clause.
(2) An instrument that is in existence on the date that the
instrument containing the no contest clause is executed and is
expressly identified in the no contest clause, either individually or
as part of an identifiable class of instruments, as being governed
by the no contest clause.
21311. (a) A no contest clause shall only be enforced against the
following types of contests:
(1) A direct contest that is brought without probable cause.
(2) A pleading to challenge a transfer of property on the grounds
that it was not the transferor's property at the time of the
transfer. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that
application.
(3) The filing of a creditor's claim or prosecution of an action
based on it. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that
application.
(b) For the purposes of this section, probable cause exists 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.
21312. In determining the intent of the transferor, a no contest
clause shall be strictly construed.
21313. This part is not intended as a complete codification of
the law governing enforcement of a no contest clause. The common law
governs enforcement of a no contest clause to the extent this part
does not apply.
21314. This part applies notwithstanding a contrary provision in
the instrument.
21315. (a) This part applies to any instrument, whenever
executed, that became irrevocable on or after January 1, 2001.
(b) This part does not apply to an instrument that became
irrevocable before January 1, 2001.
SEC. 3. This act shall become operative on January 1, 2010.