Although the legislature amended the Probate Code in 2011 to require that a “direct contest” of an estate planning document be brought without “probable cause” in order for the document’s No Contest Clause to be enforceable, there are currently no published appellate opinions which discuss this probable cause standard. This article discusses a recent trial court decision from the San Francisco Superior Court which enforces the subject No Contest Clause on the basis that the contestants lacked probable cause to bring their action (which caused a forfeiture of a $10 million inheritance), and provides valuable insight as to how courts may approach this issue going forward.

In a prior blog, Keystone analyzed the circumstances when a successor trustee can access confidential communications of the predecessor trustee and his counsel. Now, a recent Court of Appeal decision has held that, even if a trust explicitly prohibits the disclosure to a successor trustee of confidential attorney-client communications by a former trustee, such provision may nonetheless be invalid as contrary to public policy, and such communications may in fact be discoverable. This has far reaching implications for all trustees.