What Law to use in No Contest Clause

The current statutory scheme at Prob C §§2131021315 ostensibly governs the enforceability of a no-contest clause in any instrument that became irrevocable on or after January 1, 2001.Prob C §21315(a). But whether this scheme is conclusive or not depends on the date of irrevocability.

For instruments that became irrevocable on or after January 1, 2010, the statutory scheme at Prob C §§2131021315 applies.

For instruments that became irrevocable on or after January 1, 2001, but before January 1, 2010, the current statutory scheme presumptively applies, but Prob C §3 might permit application of the former law. Donkin v Donkin (2013) 58 C4th 412. In a sense, there are overlapping enforcement regimes for instruments that became irrevocable in this period: they are now governed byProb C §§2131021315, but they were governed at the time of irrevocability by repealed Prob C §§2130021322 and associated case law. The default rule is hence that the current law presumptively applies to these instruments, subject to Prob C §3.

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