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No Contest Clauses in Wills - When There is a Challenge to the Validity of the Instrument

The purpose of a no contest clause that is included in a California will is to discourage frivolous legal disputes of the terms of a will after the testator has deceased. While in many cases a no contest clause does just that–other situations are not so easily resolved, and there are exclusions to the scope of a no contest clause that are often upheld by California courts.

One such exclusion is a valid concern and dispute over the instrument created by the testator. Specifically, to hold legal weight, a will must be in writing, and two witnesses must sign it. These witnesses cannot have any stake in the will–meaning that they cannot be beneficiaries of it–and they cannot be married to, or be a civil partner to anyone who has a stake in the estate for which the will was written. In rare cases in which a beneficiary was also a witness to a will, this fault might not invalidate the entire will, rather only the part that relates to the beneficiary who acted as witness.

The witnesses must also see the testator actually sign the will, and they must sign only after the testator has done so.

Such faulty errors to the actual instrument can be valid reasons to contest a will. A problem with the will instrument itself is generally considered a valid exclusion to a no contest clause, unless that clause includes specific language stating that a dispute over the validity of the instrument falls under the no contest request. Even then, however, the no contest clause may not be enforced if the beneficiary was acting reasonably when initiating such a contest.

If you have a question concerning a no contest clause that you wish to include in your will, or if you are a beneficiary who wishes to understand the scope and limits of a no contest clause, a qualified California estate lawyer will be able to provide more details concerning the recent legislation and current legal state of no contest clauses. As the law is in the process of changing, and such changes might be retroactive to your current situation, it is best to consult an experienced California estate attorney to determine the steps that are best for you to take.