SECTIONS 21310-21315 - California Statutes

PROBATE CODE

SECTION 21310-21315

21310. As used in this part:
(a) "Contest" means a pleading filed with the court by a
beneficiary that would result in a penalty under a no contest clause,
if the no contest clause is enforced.
(b) "Direct contest" means a contest that alleges the invalidity
of a protected instrument or one or more of its terms, based on one
or more of the following grounds:
(1) Forgery.
(2) Lack of due execution.
(3) Lack of capacity.
(4) Menace, duress, fraud, or undue influence.
(5) Revocation of a will pursuant to Section 6120, revocation of a
trust pursuant to Section 15401, or revocation of an instrument
other than a will or trust pursuant to the procedure for revocation
that is provided by statute or by the instrument.
(6) Disqualification of a beneficiary under Section 6112, 21350,
or 21380.
(c) "No contest clause" means a provision in an otherwise valid
instrument that, if enforced, would penalize a beneficiary for filing
a pleading in any court.
(d) "Pleading" means a petition, complaint, cross-complaint,
objection, answer, response, or claim.
(e) "Protected instrument" means all of the following instruments:
(1) The instrument that contains the no contest clause.
(2) An instrument that is in existence on the date that the
instrument containing the no contest clause is executed and is
expressly identified in the no contest clause, either individually or
as part of an identifiable class of instruments, as being governed
by the no contest clause.

21311. (a) A no contest clause shall only be enforced against the
following types of contests:
(1) A direct contest that is brought without probable cause.
(2) A pleading to challenge a transfer of property on the grounds
that it was not the transferor's property at the time of the
transfer. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that
application.
(3) The filing of a creditor's claim or prosecution of an action
based on it. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that
application.
(b) For the purposes of this section, probable cause exists if, at
the time of filing a contest, the facts known to the contestant
would cause a reasonable person to believe that there is a reasonable
likelihood that the requested relief will be granted after an
opportunity for further investigation or discovery.

21312. In determining the intent of the transferor, a no contest
clause shall be strictly construed.

21313. 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.

21314. This part applies notwithstanding a contrary provision in
the instrument.

21315. (a) This part applies to any instrument, whenever executed,
that became irrevocable on or after January 1, 2001.
(b) This part does not apply to an instrument that became
irrevocable before January 1, 2001.