“contests” thus disqualifying the Petitioners in those cases from inheriting anything due to their violation of the no contest clause set forth in the Trust. The challenge could also result in the payment not only of your own fees, but those of the Trustee and the attorney hired by the Trustee as well.
A s a r e s u l t o f t h e s e h a r s h d e c i s i o n s , t h e l e g i s l a t u r e f e l t c o m p e l l e d t o a c t . D e c i s i o n s such as these were felt to have a “chilling” effect on potential bona fide contests. Potential contestants became fearful that anything they would file could be determined to be a contest and, that unless they were victorious in their Petition (and who could guarantee that) for filing a Petition on even a minor issue, that their entire inheritance could be placed in jeopardy.
T h e l e g i s l a t u r e c a m e u p w i t h a p l a n . W h a t i f t h e p o t e n t i a l p e t i t i o n c o u l d b e p r e - a p p r o v e d ? In other words, what if a potential litigant were allowed to get a prior Court determination that a contemplated Petition was or was not a contest? If the Court ruled that the proposed Petition was not a contest, then the Petitioner could file it without risk of losing everything. On the other hand, if it was determined that it was a contest, then an informed decision as to what to do could be made. This was the so-called “Safe Harbor” Petition. Trusts and estates litigators commonly file such protective Petitions prior to filing
anything which could conceivably be determined to violate a no contest clause. This procedure has had the unfortunate effect of significantly lengthening the process of Trust litigation because before a simple Petition can be filed, a “safe harbor” Petition must be filed for protective purposes. This in itself has become a subject of litigation. The Party who wishes to protect the Will or Trust thus opposes the Safe Harbor Petition and argues that in fact the proposed Petition is in fact a violation of the no contest clause.
A s o n e c a n s e e , t h e n o c o n t e s t c l a u s e i s s u e h a s b e c o m e s o m e w h a t o f a m e s s . T h e legislature has even passed statutes attempting to define what is and what is not a violation of a no contest clause. These laws, however, have had only limited success. Moreover, for various reasons they have not been retroactively applied, i.e., they do not apply to Wills and Trusts which were drafted prior to
the enactment of the laws defining what is and is not a contest.
L a t e l y , t h e r e h a v e b e e n e f f o r t s m a d e t o e l i m i n a t e t h e c o n c e p t of the no contest clause altogether. In fact, in many States (but obviously not California) no contest clause are not given any force or effect. The Los Angles County Bar Association Trusts and Estates section is split on this issue and there is no true consensus about what to do.