terrorem clause in California

1998We are persuaded that a proper and straight-forward question under the circumstances should not be prevented nor should access to the probate court be impeded by any threat of reprisal.” (Id. at pp. 201-202.) Similarly, in the context of a probate in Estate of Miller (1964) 230 Cal.App.2d 888 [ 41 Cal.Rptr. 410 ], the court noted, “It is always proper for a beneficiary of an estate who believes that the executor is not fulfilling his duty to make the objections which the code permits without risk of suffering a penalty provided by an in terrorem clause.

1998We are persuaded that a proper and straight-forward question under the circumstances should not be prevented nor should access to the probate court be impeded by any threat of reprisal.” (Id. at pp. 201-202.) Similarly, in the context of a probate in Estate of Miller (1964) 230 Cal.App.2d 888 [ 41 Cal.Rptr. 410 ], the court noted, “It is always proper for a beneficiary of an estate who believes that the executor is not fulfilling his duty to make the objections which the code permits without risk of suffering a penalty provided by an in terrorem clause.

1984(Estate of Hite (1909) 155 Cal. 436, 439-441 [ 101 P. 443 ].) However, “it is also the rule, and a salutary one, that such provision—being by way of forfeiture and condition subsequent—is to be strictly construed and not extended beyond what was plainly the testator’s intent.” (Estate of Bergland (1919) 180 Cal. 629, 633 [ 182 P. 277 , 5 A.L.R. 1363 ].) “The policy against forfeiture is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause; ...” (Estate of

1984(Estate of Hite (1909) 155 Cal. 436, 439-441 [ 101 P. 443 ].) However, “it is also the rule, and a salutary one, that such provision—being by way of forfeiture and condition subsequent—is to be strictly construed and not extended beyond what was plainly the testator’s intent.” (Estate of Bergland (1919) 180 Cal. 629, 633 [ 182 P. 277 , 5 A.L.R. 1363 ].) “The policy against forfeiture is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause; ...” (Estate of

1984(Estate of Hite (1909) 155 Cal. 436, 439-441 [ 101 P. 443 ].) However, “it is also the rule, and a salutary one, that such provision—being by way of forfeiture and condition subsequent—is to be strictly construed and not extended beyond what was plainly the testator’s intent.” (Estate of Bergland (1919) 180 Cal. 629, 633 [ 182 P. 277 , 5 A.L.R. 1363 ].) “The policy against forfeiture is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause; ...” (Estate of

1984(Estate of Hite (1909) 155 Cal. 436, 439-441 [ 101 P. 443 ].) However, “it is also the rule, and a salutary one, that such provision—being by way of forfeiture and condition subsequent—is to be strictly construed and not extended beyond what was plainly the testator’s intent.” (Estate of Bergland (1919) 180 Cal. 629, 633 [ 182 P. 277 , 5 A.L.R. 1363 ].) “The policy against forfeiture is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause; ...” (Estate of

1987I * II Mrs. Lindstrom’s will dated February 23, 1982, contained the following provision: “If any devisee, legatee, or beneficiary under this Will, or any legal heir of mine, or person claiming under any of them, shall contest this Will, or attack or seek to impair or invalidate any of its provisions, or conspire with or voluntarily assist anyone attempting to do any of those things, in that event I specifically disinherit each such person and all legacies, bequests, devises and interests given under this Will to that person shall be forfeited and shall augment proportionately the shares of my

1987I * II Mrs. Lindstrom’s will dated February 23, 1982, contained the following provision: “If any devisee, legatee, or beneficiary under this Will, or any legal heir of mine, or person claiming under any of them, shall contest this Will, or attack or seek to impair or invalidate any of its provisions, or conspire with or voluntarily assist anyone attempting to do any of those things, in that event I specifically disinherit each such person and all legacies, bequests, devises and interests given under this Will to that person shall be forfeited and shall augment proportionately the shares of my

1971(Estate of Dow (1957) 149 Cal.App.2d 47, 53 [ 308 P.2d 475 ]; Estate of Fuller (1956) 143 Cal.App.2d 820, 824 [ 300 P.2d 342 ].) Here, the trial court concluded that in filing the petition for determination of heirship, respondent did not “oppose or contest” the will within the meaning of the in terrorem clause.

1971(Estate of Dow (1957) 149 Cal.App.2d 47, 53 [ 308 P.2d 475 ]; Estate of Fuller (1956) 143 Cal.App.2d 820, 824 [ 300 P.2d 342 ].) Here, the trial court concluded that in filing the petition for determination of heirship, respondent did not “oppose or contest” the will within the meaning of the in terrorem clause.

1971(Lobb v. Brown, supra, 208 Cal. at p. 492 ; Estate of Crisler (1950) 97 Cal.App.2d 198, 201 [ 217 P.2d 470 ].) The in terrorem clause provided that no person should “oppose or contest” the will or any portion thereof.

1971(Lobb v. Brown, supra, 208 Cal. at p. 492 ; Estate of Crisler (1950) 97 Cal.App.2d 198, 201 [ 217 P.2d 470 ].) The in terrorem clause provided that no person should “oppose or contest” the will or any portion thereof.

1984(See Estate of Vanderhurst (1915) 171 Cal. 553, 558-559 [ 154 P. 5 ].) That litigation of the section 1080 petition may entail substantial cost does not, without more, bring the proceeding within the scope of the forfeiture clause. 6 Here, the wording of the in terrorem clause prohibits “contests or attacks” by a beneficiary upon the will “directly or indirectly, ...” Both logic and the weight of authority hold that the bringing of a proceeding to determine the effect of such language should Graham file the proposed Marvin claim does not trigger a forfeiture.

1984(See Estate of Vanderhurst (1915) 171 Cal. 553, 558-559 [ 154 P. 5 ].) That litigation of the section 1080 petition may entail substantial cost does not, without more, bring the proceeding within the scope of the forfeiture clause. 6 Here, the wording of the in terrorem clause prohibits “contests or attacks” by a beneficiary upon the will “directly or indirectly, ...” Both logic and the weight of authority hold that the bringing of a proceeding to determine the effect of such language should Graham file the proposed Marvin claim does not trigger a forfeiture.

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

2009(Estate of Miller (1963) 212 Cal.App.2d 284, 298 [ 27 Cal.Rptr. 909 ] [“The policy against forfeitures is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause . . . .”].) He points out that we must strictly construe a no-contest clause. (§ 21304 [“In determining the intent of the transferor, a no contest clause shall be strictly construed.”]; Burch v. George (1994) 7 Cal.4th 246, 254 [ 27 Cal.Rptr.2d 165 , 866 P.2d 92 ].) Daniel argues that a debt barred

2009(Estate of Miller (1963) 212 Cal.App.2d 284, 298 [ 27 Cal.Rptr. 909 ] [“The policy against forfeitures is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause . . . .”].) He points out that we must strictly construe a no-contest clause. (§ 21304 [“In determining the intent of the transferor, a no contest clause shall be strictly construed.”]; Burch v. George (1994) 7 Cal.4th 246, 254 [ 27 Cal.Rptr.2d 165 , 866 P.2d 92 ].) Daniel argues that a debt barred

1971Only where an act comes strictly within the express terms of the forfeiture clause may a breach thereof be declared. ( Lobb v. Brown, supra, 208 Cal. at p. 492 ; Estate of Crisler (1950) 97 Cal. App.2d 198, 201 [ 217 P.2d 470 ].) (2b) The in terrorem clause provided that no person should "oppose or contest" the will or any portion thereof.

1971(Lobb v. Brown, supra, 208 Cal. at p. 492 ; Estate of Crisler (1950) 97 Cal.App.2d 198, 201 [ 217 P.2d 470 ].) The in terrorem clause provided that no person should “oppose or contest” the will or any portion thereof.

1984(See, e.g., Estate of Schreck, supra, 47 Cal. App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal. App.2d 47 , in which a widow's claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal. App.2d 888 , holding that an action to estab

1984(See, e.g., Estate of Schreck, supra, 47 Cal.App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal.App.2d 47 , in which a widow’s claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal.App.2d 888 , holding that an action to establis

1987An in terrorem clause in a will “is to be strictly *384 construed____” (In re Kitchen (1923) 192 Cal. 384, 389 [ 220 P. 301 ].) An in terrorem clause is to be given “ ‘no wider scope... than is plainly required.

1987An in terrorem clause in a will “is to be strictly *384 construed____” (In re Kitchen (1923) 192 Cal. 384, 389 [ 220 P. 301 ].) An in terrorem clause is to be given “ ‘no wider scope... than is plainly required.

1993Estate of Friedman (1979) 100 Cal.App.3d 810 [ 161 Cal.Rptr. 311 ] held an order determining whether a proposed action would violate a will’s no contest clause was appealable under former Probate Code section 1240, in that it was an order “‘determining [or refusing to determine] heirship or the persons to whom distribution should be made or trust property should pass.’ ” (At pp. 813-814, fn. 2.) Since “[t]he right to appeal under section 1240 is determined by the effect of an order, not by its form,” and the effect of the order in question “was a refusal to determine . . . the persons to whom

1993Estate of Friedman (1979) 100 Cal.App.3d 810 [ 161 Cal.Rptr. 311 ] held an order determining whether a proposed action would violate a will’s no contest clause was appealable under former Probate Code section 1240, in that it was an order “‘determining [or refusing to determine] heirship or the persons to whom distribution should be made or trust property should pass.’ ” (At pp. 813-814, fn. 2.) Since “[t]he right to appeal under section 1240 is determined by the effect of an order, not by its form,” and the effect of the order in question “was a refusal to determine . . . the persons to whom

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1984(See Estate of Vanderhurst (1915) 171 Cal. 553, 558-559 [ 154 P. 5 ].) That litigation of the section 1080 petition may entail substantial cost does not, without more, bring the proceeding within the scope of the forfeiture clause. [6] Here, the wording of the in terrorem clause prohibits "contests or attacks" by a beneficiary upon the will "directly or indirectly, ..." Both logic and the weight of authority hold that the bringing of a proceeding to determine the effect of such language should Graham file the proposed Marvin claim does not trigger a forfeiture. ( Estate of Miller, supra, 230 C

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1984(See Estate of Vanderhurst (1915) 171 Cal. 553, 558-559 [ 154 P. 5 ].) That litigation of the section 1080 petition may entail substantial cost does not, without more, bring the proceeding within the scope of the forfeiture clause. [6] Here, the wording of the in terrorem clause prohibits "contests or attacks" by a beneficiary upon the will "directly or indirectly, ..." Both logic and the weight of authority hold that the bringing of a proceeding to determine the effect of such language should Graham file the proposed Marvin claim does not trigger a forfeiture. ( Estate of Miller, supra, 230 C

1984(See Estate of Vanderhurst (1915) 171 Cal. 553, 558-559 [ 154 P. 5 ].) That litigation of the section 1080 petition may entail substantial cost does not, without more, bring the proceeding within the scope of the forfeiture clause. [6] Here, the wording of the in terrorem clause prohibits "contests or attacks" by a beneficiary upon the will "directly or indirectly, ..." Both logic and the weight of authority hold that the bringing of a proceeding to determine the effect of such language should Graham file the proposed Marvin claim does not trigger a forfeiture. ( Estate of Miller, supra, 230 C

1956(In re Garcelon, 104 Cal. 570, 590 [ 38 P. 414 , 43 Am.St.Rep, 134, 32 L.R.A. 595 ] ; Estate of Hite, 155 Cal. 436, 439-441 [ 101 P. 443 , 17 Ann.Cas. 993, 21 L.R.A.N.S. 953 ]; Estate of Miller, 156 Cal. 119, 121-122 [ 103 P. 842 , 23 L.R.A.N.S. 868 ].) An in terrorem clause is to be strictly construed.

1956(In re Garcelon, 104 Cal. 570, 590 [ 38 P. 414 , 43 Am.St.Rep, 134, 32 L.R.A. 595 ] ; Estate of Hite, 155 Cal. 436, 439-441 [ 101 P. 443 , 17 Ann.Cas. 993, 21 L.R.A.N.S. 953 ]; Estate of Miller, 156 Cal. 119, 121-122 [ 103 P. 842 , 23 L.R.A.N.S. 868 ].) An in terrorem clause is to be strictly construed.

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1974Such a petition is not a "contest" within the meaning of an in terrorem clause. ( Estate of Basore, supra, 19 Cal. App.3d 623 .) Neither is a petition to remove a testamentary trustee ( Estate of Bullock, 264 Cal. App.2d 197 [ 70 Cal. Rptr. 239 ]), a petition seeking an interpretation of a will ( Estate of Vanderhurst, 171 Cal. 553, 558-559 [ 154 P. 5 ]; Estate of Brisacher, 27 Cal. App.2d 327, 330 [ 80 P.2d 1033 ]), although the interpretation might invalidate some of its provisions ( Estate of Harrison, 22 Cal. App.2d 28, 40-41 [ 70 P.2d 522 ]), or a good faith attempt to probate a purported

1984(See, e.g., Estate of Schreck, supra, 47 Cal. App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal. App.2d 47 , in which a widow's claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal. App.2d 888 , holding that an action to estab

1984(See, e.g., Estate of Schreck, supra, 47 Cal.App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal.App.2d 47 , in which a widow’s claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal.App.2d 888 , holding that an action to establis

1984(See, e.g., Estate of Schreck, supra, 47 Cal.App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal.App.2d 47 , in which a widow’s claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal.App.2d 888 , holding that an action to establis

1984(See, e.g., Estate of Schreck, supra, 47 Cal.App.3d 693 , holding that a no-contest clause similar to the one herein did not prevent a beneficiary who was the widow of the testator from claiming rights to joint tenancy property, which the testator had attempted to dispose of by will, or her statutory rights to a homestead; Estate of Dow, supra, 149 Cal.App.2d 47 , in which a widow’s claim to establish that property otherwise disposed of by will was community property was held not to violate the in terrorem clause; Estate of Miller, supra, 230 Cal.App.2d 888 , holding that an action to establis

1984(Estate of Dodge (1971) 6 Cal.3d 311, 318 [ 98 Cal.Rptr. 801 , 491 P.2d 385 ]; Estate of Friedman, supra, 100 Cal.App.3d at p. 815, fn. 4 .) Furthermore, in response to the petition, the executors not only requested the court to find that the filing of the proposed section 851.5 petition would constitute a violation of the in terrorem clause, but also sought a ruling that the filing of the section 1080 petition itself triggered the no-contest provision.

1984(Estate of Dodge (1971) 6 Cal.3d 311, 318 [ 98 Cal.Rptr. 801 , 491 P.2d 385 ]; Estate of Friedman, supra, 100 Cal.App.3d at p. 815, fn. 4 .) Furthermore, in response to the petition, the executors not only requested the court to find that the filing of the proposed section 851.5 petition would constitute a violation of the in terrorem clause, but also sought a ruling that the filing of the section 1080 petition itself triggered the no-contest provision.

1971(Respondent expressly disclaimed desire to invoke the clause against Mrs. Paulsen and the court did not apply it.) Appellants place considerable reliance on a declaration in Estate of Black, 211 Cal.App.2d 75, 91 [ 27 Cal.Rptr. 418 ], that “there is a reluctance by the courts to apply the cry pres doctrine where a gift fails ab initio.” But Estate of Black and Estate of Zilke, 115 Cal.App. 63 [ 1 P.2d 475 ], also cited by appellants, are cases in which it was difficult to determine which particular institution was in the testator’s mind.

1971(Respondent expressly disclaimed desire to invoke the clause against Mrs. Paulsen and the court did not apply it.) Appellants place considerable reliance on a declaration in Estate of Black, 211 Cal.App.2d 75, 91 [ 27 Cal.Rptr. 418 ], that “there is a reluctance by the courts to apply the cry pres doctrine where a gift fails ab initio.” But Estate of Black and Estate of Zilke, 115 Cal.App. 63 [ 1 P.2d 475 ], also cited by appellants, are cases in which it was difficult to determine which particular institution was in the testator’s mind.

1957In Estate of Mathie, 64 Cal.App.2d 767 [ 149 P.2d 485 ], it was held that the husband’s acts in destroying his wife’s will and petitioning for letters of administration, then petitioning for probate of a will prior to the one he destroyed, and petitioning for a probate homestead alleging in bad faith that the property was community property, constituted a contest of the destroyed will, thereby invoking an in terrorem clause therein.

1957In Estate of Mathie, 64 Cal.App.2d 767 [ 149 P.2d 485 ], it was held that the husband’s acts in destroying his wife’s will and petitioning for letters of administration, then petitioning for probate of a will prior to the one he destroyed, and petitioning for a probate homestead alleging in bad faith that the property was community property, constituted a contest of the destroyed will, thereby invoking an in terrorem clause therein.