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4 To: Wendy Johnson From: Law Clerk, Christina Andreoni Date: July 21, 2014 RE: Probate Law Questions re: Jeff Cheyne research request Question Presented Why was the California Probate Code regarding no contest clauses (in terrorem clauses) changed in 2008, and what are the main differences between it, the prior California legislation, the UPC and the ORS? Short Answer The no contest law in the California Probate Code was changed because lawmakers thought it was convoluted with too many exceptions, causing confusion and increasing litigation time and costs since beneficiaries were forced to seek declaratory relief even just to find out if their proposed action would, first and foremost, be considered a contest. The California Law Revision Commission also thought that forfeiture was a harsh penalty and should therefore, be disfavored as a matter of policy. The new California Probate Code and the UPC s provisions on no contest clauses are similar in that they both make a no contest clause unenforceable if there is probable cause to contest; however, the California code provides just a few specific exceptions where no contest clauses will be enforceable despite having probable cause (i.e. transferor s property and creditor s claims), and the broader UPC provisions provide no exception if the probable cause is met. Contrarily, the Oregon statutory default makes all contest clauses enforceable (regardless of probable cause) and provide a few exceptions where they would be considered unenforceable (i.e. forgery, revocation, and fiduciaries). Applicable Statutes Penalty Clause for Contest., Unif. Probate Code A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Or. Rev. Stat. Ann (West). (1) Except as provided in this section, an in terrorem clause in a will is valid and enforceable. If a devisee contests a will that contains an in terrorem clause that applies to the devisee, the court shall enforce the clause against the devisee even though the devisee establishes that there was probable cause for the contest.

5 2 (2) The court shall not enforce an in terrorem clause if the devisee contesting the will establishes that the devisee has probable cause to believe that the will is a forgery or that the will has been revoked. (3) The court shall not enforce an in terrorem clause if the contest is brought by a fiduciary acting on behalf of a protected person under the provisions of ORS chapter 125, a guardian ad litem appointed for a minor, or a guardian ad litem appointed for an incapacitated or financially incapable person. (4) For the purposes of this section, in terrorem clause means a provision in a will that reduces or eliminates a devise to a devisee if the devisee contests the will. Cal. Prob. Code (West) (Present). (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, 21350, or Cal. Prob. Code (West) (Present). (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

6 3 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. Cal. Prob. Code (repealed). (a) A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with reasonable cause, brings a contest that is limited to one or more of the following grounds: (1) Forgery. (2) Revocation. (3) An action to establish the invalidity of any transfer described in Section (b) "Reasonable cause" is defined for the purposes of this section to mean that the party filing the action, proceeding, contest, or objections has possession of facts that would cause a reasonable person to believe that the allegations and other factual contentions in the matter filed with the court may be proven or, if specifically so identified, are likely to be proven after a reasonable opportunity for further investigation or discovery. Cal. Prob. Code (repealed). A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with probable cause, contests a provision that benefits any of the following persons: (a) A person who drafted or transcribed the instrument. (b) A person who gave directions to the drafter of the instrument concerning dispositive or other substantive contents of the provision or who directed the drafter to include the no contest clause in the instrument, but this subdivision does not apply if the transferor affirmatively instructed the drafter to include the contents of the provision or the no contest clause. (c) A person who acted as a witness to the instrument

7 4 Discussion Under the UPC, no contest clauses are deemed unenforceable if there is probable cause to institute proceedings. See Probable cause is not specifically defined in the UPC itself, but has been defined generally from case law as the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful. In Re Shumway, 9 P.3d 1062 (Ariz. 2000), citing Restatement (Second) of Property: Donative Transfers 9.1 (1983). Under Oregon law, no contest clauses are enforceable, even if the devisee has probable cause to institute a proceeding, subject to a few exceptions. ORS (1). The exceptions include instances where the devisee has probable cause to believe that the will is a forgery or that the will has been revoked, as well as if the contest is brought by a fiduciary acting on behalf of the devisee. Or. Rev. Stat. Ann (2)-(3). Prior to 2008, California s laws on no contest provisions were much like Oregon s: no contest clauses were generally enforceable; however, although this was the statutory law, there were numerous exceptions. Greenberg, Wendy M., California s New No-Contest Law, LexisNexis Legal Newsroom (Jan. 2010). Specifically, no contest clauses were unenforceable against a beneficiary who brought certain direct contests (on grounds of forgery, revocation, or invalidity of transfer to drafter, care custodian, or others in a fiduciary relationship to the transferor) with reasonable cause. Cal. Prob. Code Section (repealed). In addition, pleadings regarding the following were not contests, as a matter of public policy: (1) modification of trust, (2) establishment of

8 5 conservatorship, (3) durable powers of attorney, (4) annulment of marriage, (5) approval of action of conservator or guardian, (6) an exercise of fiduciary power, (7) appointment or removal of a fiduciary, (8) an accounting or report of a fiduciary, (9) interpretation of an instrument, (10) approval of a settlement or a compromise, (11) reformation of an instrument to carry out the intention of the creator, and (12) compelling a report where not waived in the instrument. Cal. Prob. Section (repealed). Id. When California passed Senate Bill 1264 in 2008, no contest clauses became legally enforceable in California under only three types of circumstances: (1) No contest clauses will be enforced when a direct contest is brought without probable cause. Cal. Prob. Code 21311(a)(1). (2) No contest clauses will be enforced against a pleading challenging the transfer of property on the grounds that it was not the transferor s property at the time of the transfer (a forced election) if the no contest clause expressly provides for the circumstance, whether or not probable cause for the pleading exists. Id. at 21311(2). (3) No contest clauses will be enforced against filing or prosecuting creditors claims, whether or not probable cause for the claim exists, if the no-contest clause expressly so provides. Id. at 21311(3). The new 2008 California bill became effective in The bill defined the probable cause standard. The previous statute had used reasonable cause; it was objective and required that it was likely that the contestant would prevail. Kara Rosenberg Cain, Chapter 174: Devising A New Statutory Scheme for California's No Contest Clauses, 40 McGeorge L. Rev. 556, 561 (2009). The new definition imposes a standard that requires a reasonable likelihood that the requested relief will be granted. Cal. Prob. Code 21311(3)(b). The key question for determining whether a party had

9 6 timely probable cause is, what was the basis for the contest at the time of the filing? Marc L. Sallus, Justin B. Gold, The Viability of No Contest Clauses in Estate Planning, L.A. Law, April 2009, at 23. For most cases now, only a lack of probable cause will trigger the no contest clause. Id. at 22. Probable cause is a low standard designed to protect a litigant s right to assert arguable legal claims: The phrase reasonable likelihood, which is used in the new probable cause definition, has been interpreted as more than merely possible, but less than more probable than not. Id. This new standard has its critics. Critics argue the new standard will actually cause an increase in will or trust contests, instead of reducing litigation. Id. Because of the minimal consequences of filing a contest and it being denied, experts believe people will be encouraged to do so, which will continue to busy the courts and increase litigation. While no contest clauses may be enforceable in actions in which the party had no real basis for bringing the claim, the vast majority of beneficiaries can now escape forfeiture simply by arguing some basis. Id. at 23. There appear to be both pros and cons of adopting a probable cause standard in no contest clauses. Supporters of probable cause, like those on the California Law Revision Commission, argue that the probable cause standard supports sound policy in disfavoring forfeiture and allows for family members to bring legitimate contests. Additionally, it acts as a tool to protect the testator s intent and the rights of contesting beneficiaries. The court in a well known Pennsylvania case, in support of the probable cause standard, stated... an inflexible rule [a no contest clause] mandating enforcement of such clauses whenever an unsuccessful contest was raised not only could result in a manifest injustice to the contestant, but accomplish results that no

10 7 rational testator would ever contemplate. In re Friend's Estate, 209 Pa. 442, 444, 58 A. 853, 854 (1904). Conclusion In conclusion, the new California laws went from being similar to Oregon s no contest clauses (being generally enforceable regardless of probable cause) to becoming more similar to the UPC s provisions on no contest clauses (unenforceable if probable cause). Overall, the provisions essentially made no contest clauses unenforceable in California, subject to few exceptions, creating much narrower no contest provisions than the prior California laws. There is no consensus among the states, but Oregon s default is particularly harsh. Oregon should consider the probable cause standard and exceptions made by other states (including California) as well as the UPC provision 1, but with careful consideration of the positives and negatives of changing the standard. 1 See also: Challis, Jack T., Zaritsky, Howard M., State Laws: No Contest Clauses, American College of Trust and Estate Counsel (ACTEC) (2012). Available at: _Chart.pdf

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