Enforceability of No Contest Clauses AFTER 2010

The current statutory scheme greatly restricts the enforceability of no-contest clauses. This law adopts a general rule that a no-contest clause “shall only be enforced” against contests that fall within one of three types (Prob C §21311):

(1) Direct contests brought without probable cause (see §§5.85.9);

(2) Challenges to certain property transfers if expressly barred by the no-contest clause ; and

(3) Filing or prosecution of creditor’s claims if expressly barred by the no-contest clause .

Thus, after January 1, 2010, for all instruments that became irrevocable on or after January 1, 2001, (Prob C §21315) no-contest clauses are not enforceable against contests that are outside these three types. As with the former law, however, the statute states that the common law governs enforcement of a no-contest clause to the extent that the statute does not apply. Prob C §21313.

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