Do No-Contest Clauses Apply to Questioning Your Executor?

Can A trustee axe your assets?

No-Contest applies to questioning the executor?

If you are the beneficiary under a Will that has a no-contest clause, you might be concerned about questioning the actions of the Executor; or for that matter, seeking to remove the Executor for bad acts while in office.  Fear not, no-contest clauses are nearly impossible to enforce under California law.

In California, all no-contest clauses are invalid except for a narrow definition of actions that fall into the category of a “direct contest” (there are two other categories as well that are not relevant to this discussion).  A direct contest is a petition that is filed in court seeking to overturn a Will (or invalidate a Will provision) based on lack of capacity, undue influence, fraud, or duress.  If your action does not meet one of those definitions, then a no-contest clause simply does not apply to you.

When you question the actions of the Executor or seek to remove the Executor from office, you are not contesting the Will at all.  In fact, in most cases you agree that the Will is valid, it is just the actions of the Executor that is the problem.  The same applies for seeking to remove an Executor, that is not an action to invalidate a Will, but rather, an action to remove a bad person from office.

In other words, you have the right as a beneficiary to question the actions of an Executor, to seek to hold the Executor liable for his or her bad acts, and to seek removal of the Executor if that is required under the circumstances.  None of those actions would qualify as a potential violation of the no-contest clause.