2007 California Probate Code Chapter 1. General Provisions

CA Codes (prob:21300-21308)

21300.  As used in this part:
   (a) "Contest" means any action identified in a "no contest clause"
as a violation of the clause.  The term includes both direct and
indirect contests.
   (b) "Direct contest" in an instrument or in this chapter means a
pleading in a proceeding in any court alleging the invalidity of an
instrument or one or more of its terms based on one or more of the
following grounds:
   (1) Revocation.
   (2) Lack of capacity.
   (3) Fraud.
   (4) Misrepresentation.
   (5) Menace.
   (6) Duress.
   (7) Undue influence.
   (8) Mistake.
   (9) Lack of due execution.
   (10) Forgery.
   (c) "Indirect contest" means a pleading in a proceeding in any
court that indirectly challenges the validity of an instrument or one
or more of its terms based on any other ground not contained in
subdivision (b), and that does not contain any of those grounds.
   (d) "No contest clause" means a provision in an otherwise valid
instrument that, if enforced, would penalize a beneficiary if the
beneficiary files a contest with the court.



21301.  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.


21302.  This part applies notwithstanding a contrary provision in
the instrument.



21303.  Except to the extent otherwise provided in this part, a no
contest clause is enforceable against a beneficiary who brings a
contest within the terms of the no contest clause.



21304.  In determining the intent of the transferor, a no contest
clause shall be strictly construed.



21305.  (a) For instruments executed on or after January 1, 2001,
the following actions do not constitute a contest unless expressly
identified in the no contest clause as a violation of the clause:
   (1) The filing of a creditor's claim or prosecution of an action
based upon it.
   (2) An action or proceeding to determine the character, title, or
ownership of property.
   (3) A challenge to the validity of an instrument, contract,
agreement, beneficiary designation, or other document, other than the
instrument containing the no contest clause.
   (b) Except as provided in subdivision (d), notwithstanding
anything to the contrary in any instrument, the following proceedings
  do not violate a no contest clause as a matter of public policy:
   (1) A pleading seeking relief under Chapter 3 (commencing with
Section 15400) of Part 2 of Division 9.
   (2) A pleading under Part 3 (commencing with Section 1800) of
Division 4.
   (3) A pleading under Part 2 (commencing with Section 4100) of
Division 4.5.
   (4) A pleading regarding an order annulling a marriage of the
person who executed the instrument containing the no contest clause.

   (5) A pleading pursuant to Section 2403.
   (6) A pleading challenging the exercise of a fiduciary power.
   (7) A pleading regarding the appointment of a fiduciary or the
removal of a fiduciary.
   (8) A pleading regarding an accounting or report of a fiduciary.
   (9) A pleading regarding the interpretation of the instrument
containing the no contest clause or an instrument or other document
expressly identified in the no contest clause.
   (10) A pleading regarding the approval of a settlement or
compromise whether or not it affects the terms of an instrument.
   (11) A pleading regarding the reformation of an instrument to
carry out the intention of the person creating the instrument.
   (12) A petition to compel an accounting or report of a fiduciary,
if that accounting or report is not waived by the instrument.  If the
instrument waives an accounting or report of a fiduciary, a petition
to determine if subdivision (a) of Section 16064 applies does not
constitute a violation of a no contest clause.
   (c) Subdivision (a) does not apply to a codicil or amendment to an
instrument that was executed on or after January 1, 2001, unless the
codicil or amendment adds a no contest clause or amends a no contest
clause contained in an instrument executed before January 1, 2001.
   (d) Subdivision (b) shall apply only to instruments of decedents
dying on or after January 1, 2001, and to documents that become
irrevocable on or after January 1, 2001.  However, paragraphs (9),
(11), and (12) of subdivision (b) shall only apply to instruments of
decedents dying on or after January 1, 2003, and to documents that
become irrevocable on or after January 1, 2003.
   (e) The provisions of paragraphs (6), (9), and (11) of subdivision
(b) do not apply if the court finds that the filing of the pleading
is a direct contest of an instrument or any of its terms, as defined
in Section 21300.
   (f) The term "pleading" in subdivision (b) includes a petition,
complaint, response, objection, or other document filed with the
court that expresses the position of a party to the proceedings.




21306.  (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 21350.
   (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.



21307.  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.



21308.  The statute of limitations for the commencement of any
motion, petition, or other act referred to in subdivision (a) of
Section 21320 shall be tolled beginning with the date the application
for the court's determination under subdivision (a) of Section 21320
is made and ending with the date the court's determination becomes
final.