Trust Law Partners Blog

We understand how complicated it can be to navigate trust disputes. Our blog is designed to give you the information needed to better understand how to protect your interests as trustees.


No Contest Clauses in California:The Crucial Role of Probable Cause

No contest clauses, also known as in terrorem clauses, have long been a subject of controversy and litigation in the realm of estate planning. These clauses are designed to deter beneficiaries from challenging the terms of a trust or will, often by threatening to disinherit them if they contest the document. In California, the enforceability of no contest clauses is strictly regulated by the law, and one key factor that determines their enforceability is the presence or absence of probable cause for a trust contest.

Understanding No Contest Clauses

A no contest clause is a provision included in a trust or will that penalizes beneficiaries who initiate legal action to challenge or contest the document. The penalty typically involves the forfeiture of their inheritance or a specific bequest. The idea behind such clauses is to discourage beneficiaries from challenging the grantor’s intentions, thereby reducing disputes and legal expenses in probate court.

Probable Cause and Its Significance

In California, the enforceability of no contest clauses is governed by the Probate Code, specifically sections 21310 to 21315. One of the central provisions of these laws is the requirement of “probable cause” for a trust contest. Probable cause refers to a reasonable belief that a challenge to the trust or will has a valid legal basis.

The importance of probable cause cannot be overstated. Without it, no contest clauses are generally enforceable, and beneficiaries who contest the trust may lose their inheritance or bequests. However, if there is probable cause for a contest, the clause is rendered unenforceable, and beneficiaries can challenge the document without fear of suffering any adverse consequences.

The Role of the Courts

The California courts play a crucial role in determining whether probable cause exists in a trust contest. When a beneficiary files a contest, the court will review the circumstances surrounding the challenge and assess whether there is a reasonable basis for it. If the court finds that probable cause does indeed exist, the no contest clause is set aside, and the contest proceeds.

What Constitutes Probable Cause?

Probable cause is a legal standard that requires more than mere suspicion or speculation. To demonstrate probable cause for a trust contest in California, a beneficiary typically needs to establish one or more of the following:

1. Evidence of undue influence: If the beneficiary has reason to believe that the grantor was unduly influenced or coerced into creating the trust or will, this can serve as probable cause.

2. Fraud or forgery: Evidence of fraud, deceit, or the forgery of the grantor’s signature on the trust or will can provide a valid basis for a trust contest.

3. Mistakes in the document: If there are errors, omissions, or ambiguities in the trust or will that suggest a lack of the grantor’s true intentions, this may constitute probable cause.

4. Lack of capacity: If there is reason to believe that the grantor lacked the mental capacity to understand the document’s implications when creating it, this can be a valid basis for a contest.

5. Violation of fiduciary duty: If a trustee or executor has breached their fiduciary duty in administering the trust, this can provide a reasonable basis for a contest.


No contest clauses in California are powerful tools to discourage beneficiaries from challenging trusts and wills. However, they are only enforceable if there is no probable cause for a trust contest. The presence of probable cause, indicating a reasonable belief in the validity of the challenge, renders these clauses unenforceable. This legal framework strikes a balance between protecting a grantor’s true intentions and allowing beneficiaries to challenge documents that may have been created under duress, through fraud, or due to other irregularities. As with any legal matter, it is essential to consult with an experienced attorney when dealing with trust contests and the enforceability of no contest clauses in California.