No Contest Clauses in Wills - Recent California Legislation Makes Changes (Part I)
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By :
Kevin Von Tungeln
Submitted
2008-11-26 14:38:30 |
California Government Code 8280-8298 requires that the California Law Revision Commission uphold the responsibility to continually review the effectiveness and fairness of California's law. From time to time, the Commission will review laws and suggest changes to more adequately and adeptly respond to the needs of California's citizens. This is to ensure that California's legislation is applicable and timely, and takes into consideration changes which will inevitably occur in the American legal system.
Such was the case in January 2008, when the Commission recommended that California's No Contest Clause Statue be abolished in most circumstances. Governor Arnold Schwarzenegger signed this bill into law on July 22, 2008, and in 2010, it will go into effect.
The Commission realized that the original purpose of no contest Clauses in estate planning were reasonable; however, they determined that the original intent and the final outcome were far too dissimilar. What began as a way to avoid costly and embarrassing litigation for many families-as contests to wills became matters of public record-became methods by which many greedy and dishonest heirs blackmailed other family members into settling the contest out of court.
While no contest clauses serve their purpose in many cases, they have been abused too often. According to the language that is typically present in no contest clauses within California wills, if a beneficiary attempts to contest any of the provisions laid out in the will, he or she runs the risk of being disinherited in the process. Basically, if the contest was not initiated due to probable cause (such as forgery, lack of mental capacity by the testator, duress, fraud, etc.), the legal dispute could reduce or forfeit the contester's portion of the inheritance.
However, the Commission found that the situations surrounding the contest of California wills were not always so clear-cut into probable and improbable cause, and that the very essence of a no contest clause seeks to hinder a person's free access to justice. Therefore, their recommendation to abolish such clauses (except in limited and rare circumstances) seemed to be the best course of action.
If you have additional questions concerning no contest clauses, or the California legislation changes surrounding them, a qualified California estate lawyer will be able to give you the best advice concerning the inclusion of a no contest clause in your estate planning options. A highly skilled California estate attorney, with experience in litigating no contest clauses in California, can offer you educated solutions to all of your estate planning needs. |
Author Resource:-
Kevin Von Tungeln is the Managing Partner of EstatePlanningSpecialists.com and Thompson Von Tungeln, P.C. Kevin practices in the areas of estate planning, probate, wills, and trust administration. Visit www.EstatePlanningSpecialists.com or www.linkedin.com/in/kevintungeln.
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