2007 California Probate Code Chapter 2. Declaratory Relief

CA Codes (prob:21320-21322)

21320.  (a) If an instrument containing a no contest clause is or
has become irrevocable, a beneficiary may apply to the court for a
determination of whether a particular motion, petition, or other act
by the beneficiary, including, but not limited to, creditor claims
under Part 4 (commencing with Section 9000) of Division 7, Part 8
(commencing with Section 19000) of Division 9, an action pursuant to
Section 21305, and an action under Part 7 (commencing with Section
21700) of Division 11, would be a contest within the terms of the no
contest clause.
   (b) A no contest clause is not enforceable against a beneficiary
to the extent an application under subdivision (a) is limited to the
procedure and purpose described in subdivision (a).
   (c) A determination under this section of whether a proposed
motion, petition, or other act by the beneficiary violates a no
contest clause may not be made if a determination of the merits of
the motion, petition, or other act by the beneficiary is required.
   (d) A determination of whether Section 21306 or 21307 would apply
in a particular case may not be made under this section.



21321.  (a) If a proceeding is pending for administration of the
transferor's estate, an application under Section 21320 shall be
filed in the court in which the proceeding is pending.
   (b) If no proceeding is pending for administration of the
transferor's estate and the transferor is deceased, an application
under Section 21320 may be filed in the superior court in any county
in which administration of the transferor's estate would be proper
or, if none, in any county in which property affected by the transfer
is located or, if none, in any county in this state.
   (c) If no proceeding is pending for administration of the
transferor's estate and the transferor is living and resides in this
state, an application under Section 21320 shall be filed in the
superior court in the county in which the transferor resides.
   (d) If no proceeding is pending for administration of the
transferor's estate and the transferor is living but does not reside
in this state, an application under Section 21320 may be filed in the
superior court in the county in which property affected by the
transfer is located or, if none, in any county in this state.
   (e) Notwithstanding any other provision of this section, if the
instrument containing the no contest clause is a trust, an
application under Section 21320 shall be filed in the court having
jurisdiction over the trust under Chapter 1 (commencing with Section
17000) of Part 5 of Division 9.



21322.  (a) If a proceeding is pending for administration of the
transferor's estate, notice of the hearing on an application under
Section 21320 shall be given as provided in Section 1220 to all of
the following persons:
   (1) Each person listed in Section 1220.
   (2) Each beneficiary named in the instrument containing the no
contest clause whose interest could be adversely affected by the
application.
   (3) The Attorney General, if the instrument containing the no
contest clause (A) involves or may involve a testamentary trust of
property for charitable purposes other than a charitable trust with a
designated trustee resident in this state or (B) involves or may
involve a devise for charitable purposes without an identified
devisee.
   (b) If no proceeding is pending for administration of the
transferor's estate, at least 30 days before the hearing on an
application under Section 21320, the applicant shall serve notice of
the hearing in the manner provided in Section 415.10 or 415.30 of the
Code of Civil Procedure on all of the following persons:
   (1) Each beneficiary named in the instrument containing the no
contest clause whose interest could be affected by the application.
   (2) Each executor, trustee, or other fiduciary named in the
instrument containing the no contest clause.
   (3) The Attorney General, if the instrument containing the no
contest clause (A) involves or may involve a testamentary trust of
property for charitable purposes other than a charitable trust with a
designated trustee resident in this state or (B) involves or may
involve a devise for charitable purposes without an identified
devisee.