No-Contest Clauses may not be effective unless properly inserted in most recent trust or will instrument

A no-contest clause or in terrorem clause, should be carefully drafted and implemented in estate planning to avoid potentially catastrophic consequences.  Such a clause can punish a person from filing a pleading in any court and result in disinheritance.  

Some people and some estate planners may insert a no-contest clause in the initial trust or will instrument and then years later draft an amendment to a trust or a codicil to a will or even a new instrument.  However, if the subsequent instrument does not include a no-contest clause or is not drafted properly to reference a prior no-contest clause then it may not be protected.  Also, if the original instrument does not properly refer to subsequent instrument(s) then such instrument(s) may not be protected.  This can be very problematic as a no-contest clause only applies to "protected instruments" under Probate Code section 21310.  Again, many no-contest clauses do not apply to future instruments (as such are not contemplated) and many amendments or subsequent wills may revoke prior instruments in their entirety. 

Even in situations where prior instruments are referenced as being given full effect, no-contest clauses have generally been narrowly construed and found to be ineffective.  The recent Court of Appeals case in Aviles v. Swearingen (2017) 2d Civil No. B281420, provides a prime example.  In that case a restatement and amendment of a trust incorporated terms of a prior trust (which had a no-contest clause) but did not specifically include a new no-contest clause, nor did it cite specifically to incorporating the old no-contest clause.  

If you find yourself in a litigation situation or potential dispute, it is best to consult with experienced counsel in such matters, such as the attorneys at the Demiris Law Firm to help guide you.