One way to disinherit someone is to state in your California Will or living trust that if a beneficiary files a “pleading” in court, that person is penalized in some fashion, often by forfeiting their inheritance or distribution out of a trust. This is often referred to as a no contest clause or an in terrorem clause. The term “pleading” means a claim, petition, complaint, objection, cross-complaint, response or answer. No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the settlor’s expressed purposes. There are, however, other public policies that compete with that one and therefore no contest clauses are also disfavored by the policy against forfeitures and may not extend beyond what was clearly the trustor’s intent. The California Probate Code contains an entire Part dedicated to no contest clauses in Sections 21310 through 21315.
California Probate Code Section 21311 defines what no contest clauses can be enforced and provides that a no contest clause may be enforced against a direct contest that is brought without probable cause. A “direct contest” is defined to mean 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: