What Is a No Contest Clause and Is It Enforceable?

A no contest clause is a provision in a will or trust declaring that any beneficiary who challenges the instrument forfeits what it leaves them. The idea is deterrence: make the price of a lawsuit the beneficiary's entire inheritance.

California enforces these clauses far more narrowly than most people assume. Under Probate Code sections 21310 through 21315, a no contest clause is enforceable essentially against a direct contest, a pleading alleging the instrument is invalid for reasons like forgery, lack of capacity, undue influence, or improper execution, and even then only if the contest was brought without probable cause. If a beneficiary had probable cause, facts that would cause a reasonable person to believe there was a reasonable likelihood the challenge would succeed after further investigation, the clause does not bite. Certain creditor claims and transfer challenges can also trigger clauses when the instrument expressly says so.

The upshot: a meritorious contest is rarely deterred by a no contest clause, but the probable cause analysis should be done carefully, in writing, before anything is filed. Petitions can also be structured to seek relief without triggering the clause at all.

What Modern California Law Permits

A no contest clause disinherits a beneficiary who challenges the instrument. California substantially narrowed their reach for instruments that became irrevocable on or after January 1, 2010. Under the current Probate Code, such a clause is generally enforceable only against three categories: a direct contest brought without probable cause, a pleading challenging a transfer of property on the ground it was not the transferor's, and a creditor's claim or action, and the latter two only if the clause expressly says so.

Everything else, including most petitions to remove a trustee, to compel an accounting, or to interpret ambiguous terms, generally does not trigger forfeiture.

The Probable Cause Safe Harbor

Even a direct contest does not trigger the clause if it was brought with probable cause, which the statute defines in terms of whether, at the time of filing, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood the requested relief would be granted after further investigation or discovery.

That is a meaningful protection, and it puts a premium on investigating before filing. A contestant who gathers medical records, the drafting attorney's file, and financial records first is in a far stronger position on probable cause than one who files on suspicion and hopes discovery produces something.

Practical Strategy on Both Sides

California eliminated the former procedure for obtaining an advance judicial declaration on whether a proposed filing would violate a clause, so a beneficiary must now assess the risk without a safe harbor ruling. That has made careful pre-filing investigation more important, not less.

For the person creating the plan, a no contest clause works best paired with something to lose. A clause that disinherits a beneficiary who was left nothing anyway deters nothing, which is why a modest bequest large enough to make forfeiture painful is a more effective deterrent than a clause standing alone.