Lafayette Estate Litigation Blog

What happens if you contest a will with a no-contest clause?

There are many things that could have implications for a person when he or she is challenging a will here in California. One is whether the will being contested contains a no-contest clause.

Such a clause, when in a will, typically directs that a person loses his or her inheritance under the will if he or she brings an unsuccessful contest against the will.


Recently in Northern California there have been an abnormally large number of police shootings. While we are firmly behind the police in most instances, a number of these shootings have proven to be outrageous. For example, we know of an elder who was having some mental difficulties and broke out some windows in his home and made a lot of noise. A neighbor called the police and here they come, two squad cars, seven officers, and guns drawn. Someone indicated they thought the elder had a gun. When the police arrived the elder was in the house yelling and screaming and running around banging on walls, etc. They yelled for him to come outside with his hands up and drop any gun that he had. Eventually the elder staggered outside on the front porch and started to walk off the top step and in his hand he had a regular broom which he was using as a walking aid. One of the officers yelled at him to put down the broom and another officer got shaky. (Apparently he was a new recruit) and shot the elder in the abdomen causing very serious injuries. After the officer had shot the elder, he was heard to pronounce, "oh, shit", obviously realizing he had shot an unarmed man. The police without waiting for an ambulance hustled the elder to emergency care and put him in a lock down room at the local hospital where he was treated but interrogated on a daily basis by the police before he was allowed any freedom. The papers were told to hush up the story. The elder has permanent damage and will have a colostomy bag throughout the rest of his life. The bottom line is if you are ever involved in a situation like this, be very careful, walk slowly, carry nothing, announce your intentions, tell the police that they should have their guns not on alert, etc. Innocent elders are easy game for trigger happy police.


Because of the court budget crisis which has pushed the courts to cut back important services to attorneys and the public in general, many courts including Probate Court have adopted procedures to help alleviate court congestion by having qualified attorneys serve as pro tem judges and discovery facilitators without pay or "pro-tem". These are good programs. Our firm participates in these programs. It is hoped that attorneys will not attempt to "game" the system and abuse these services in an attempt to delay a case from moving forward in the system. An example of this would be to object to discovery such as a subpoena knowing that the issues would not be handled by the judge but referred to a pro-bono attorney to handle initially before it gets to a judge if needed and simply cause delay. 


The average survival rate is eight years after being diagnosed with Alzheimer's - some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer's don't die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.


Recently one of our clients prevailed in a Will contest and as a result the Will she fought for was decided by the court to be the one to be probated. One of the assets in the probate estate was a piece of real estate in an impoverished part of Contra Costa County worth very little. We were able to find a realtor who was quite sharp and this realtor found a buyer for the property at a price we thought was more than reasonable. There were only two beneficiaries of the estate and of course, our client the executor felt that the price was right, but the other beneficiary who had lost the Will contest objected, indicating that he felt that the price was too low. Because of his objections, we had to go to get court approval for the sale which was already to close and in escrow and obviously it was inconvenient to postpone the sale to get court approval. Were we wrong. Real estate is so hot now in the Bay Area that even junk real estate value has exploded. At the sale the original purchaser finally prevailed but he had to ward off 9 overbids in Probate Department 14, Contra Costa County Superior Court. The Judge was like an auctioneer on that particular morning. The final sales value was almost 30% higher than the original sales figure. The extra work was more than compensated for and everybody went home happy, which is nice for a change.


One of the most dangerous practices of people who are doing a Will or trust is to name their oldest child automatically as the trustee or executor of their trust or Will upon their demise. Time after time that particular person named just because they are the oldest turns out to be probably the weakest pick of the litter. When you are advising a client on the subject, you must explore the background of each child and try to get the parent to make the best selection not just the one that is the norm which is to name the eldest child. A large percentage of Will and trust litigation is based upon the fact that people do not select the person on merit but simply on "first born". Even if they only have one child this person's ability should be scrutinized as well. In fact, no matter how many children they have if none of them can meet what you think are proper criteria for the job, let them know. In fact, one of our most recent cases the youngest son who was a medical doctor and was fully able to handle his deceased mother's affairs wasn't able to do it because his older brother had been appointed trustee of the trust. Not until the older brother who was essentially unemployed, uneducated, etc., and who completely messed up his mother's affairs were we able to get the older son in as substitute trustee for his brother who was eliminated by the court. 


In a recent case the Estate of Satish Trikah, [219 Cal.App. 4th 791, 162 Cal.Rptr. 3d 175] Testator's wife filed a will contest and opposed the petitions by son of a prior marriage to probate the will alleging that the testator had revoked the will by destroying it and the estate should pass by intestate succession. The son only had a copy of the unsigned will. The trial court following the old presumption that if there was no signed will it was presumed that the testator had revoked it. The appeals court reversed indicating as follows: 1) Son presented substantial evidence that testator did not destroy his will with intent to revoke it; 2) Son did not have burden of proof to convince trial court that testator did not destroy his will with intent to revoke it; and 3) Trial court's error in placing the burden proof on son was prejudicial to son. 


The Estate of B, Contra Costa County, Probate Department.

In law school we all read about Totten Trusts. You can avoid probate using such a trust. It is simply a pay on death (POD) instrument be it a bank account, T-Bill, or whatever.

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Pedder, Hesseltine, Walker & Toth, LLP | Est. 1995

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