Statutory changes have further limited the applicability of no contest clauses to apply only to certain specific types of legal actions – the most common being direct attacks on the estate planning documents themselves, known as “direct contests”

1. THE ANTI-SLAPP STATUTE IS NOW A POWERFUL TOOL TO
DISCOURAGE ENFORCEMENT OF NO CONTEST CLAUSES
No contest clauses – which ostensibly act to disinherit any party who seeks to contest the
dispositive terms or validity of estate planning documents – are generally liked by estate
planning clients and employed by planners. Why wouldn’t they be? When directing the
distribution of your assets after your death, who wouldn’t want to prevent a disfavored or
disinherited heir from questioning one’s intent and causing one’s estate to incur substantial
expense defending a contest?
But despite their popularity, problems have
long existed in the enforcement of no contest
clauses. No contest clauses have limited effect
on fully disinherited heirs who already have
nothing to lose. And recent statutory changes
have further limited the applicability of no
contest clauses to apply only to certain specific
types of legal actions – the most common
being direct attacks on the estate planning
documents themselves, known as “direct
contests” – and even then, only to those direct
contests which are brought without probable
cause.[1] Thus, there is often a significant
chance that any such no contest clause, even if
found to be applicable under these statutory
restrictions in response to a direct contest, will be nullified by a probable cause justification.
More recently, another factor has come into play that should cause litigators to think twice before
seeking to enforce a no contest clause and to tread lightly when they do – the anti-SLAPP statute.
SLAPP is an acronym for Strategic Lawsuit Against Public Participation. California Code of
Civil Procedure section 425.16 is California’s anti-SLAPP statute and provides a special motion
to strike a complaint where the complaint arises from activity exercising the rights of petition
and free speech. In Urick v. Urick[2], the Second District Court of Appeal held that that the anti-
SLAPP statute is also applicable to probate petitions which seek to enforce no contest clauses.
Urick’s Application of the Anti-SLAPP Statute to No Contest Clauses
Urick involved a trust agreement and the effect of extrinsic evidence of the settlor’s testamentary
intent, in interpreting a trust amendment. Settlor Allyne Urick originally executed a trust

2. agreement structured as a charitable remainder annuity trust, with the annuity to pay equally to
settlor’s daughter Dana Urick, son Willis E. Urick, III, and grandson Trentyn Urick-Strass. Upon
termination of the annuity, the remaining principal and any accrued interest was to be distributed
to Phillips Academy of Andover.
Several months after the execution of the trust, Allyne signed a handwritten note removing
Willis as a beneficiary of the trust. Then, several months later with the assistance of an attorney,
Allyne executed an amended and restated trust. Despite Allyne’s prior attempt to disinherit
Willis, the amended and restated trust was again structured as a charitable remainder annuity
trust, again naming Dana, Willis and Trentyn as recipients of the annuity income, and again
naming Philips Academy as the recipient of the remaining principal and any undistributed
income upon termination of the annuity.
After settlor’s death, Dana assumed the role of successor trustee. Dana then filed a petition to
reform the trust. In support of her petition, Dana cited mistake and misrepresentation as grounds
for reformation, claiming that (based on the decedent’s handwritten note) it was Allyne’s intent
to disinherit Willis, that the terms of the trust were misrepresented to Allyne by the drafting
attorney, and that Allyne had mistakenly signed the amended trust believing it reflected her true
intent. Dana proposed a reformation of the trust which caused trust assets to be split into two
shares, to be held in trust for ten years for the benefit of Dana and Trentyn, and then to be
distributed outright to each of them. If neither of Dana nor Trentyn survived the settlor, the assets
would be divided in four equal shares and distributed to four institutions, one of which was
Phillips Academy.
Because the proposed reformation petition would again disinherit Willis and would substantially
reduce the remainder gift to Phillips Academy, Willis and Phillips Academy each objected.
Willis also filed a petition for instructions as to whether the reformation petition violated the
Trust’s no contest clause. Dana responded with an anti-SLAPP motion purportedly brought in
her capacity as trustee. The trial court granted the anti-SLAPP motion and ordered Willis to pay
Dana’s substantial attorney fees of $25,000.00.
Willis appealed the decision, and the matter was reviewed de novo, to “determine not only
whether the anti-SLAPP statute applies, but whether the complainant has established a
reasonable probability of prevailing on the merits.”[3] The Court of Appeal held that the anti-
SLAPP statute does apply to efforts to enforce a no contest clause on its face, but that Willis was
able to establish a reasonable probability of prevailing on the merits. In regard to the latter
finding, the Court looked at: 1) the evidence which indicated that Dana had filed the petition as a
trust beneficiary (and not as a trustee)[4] who would therefore be subject to the no contest clause;
2) that there was prima facie evidence that the reformation petition constituted a direct contest on
the grounds of fraud; and 3) that there was prima facie evidence that Dana did not have probable
cause to file the reformation petition.
In reaching its opinion, the Court recognized that its application of the anti-SLAPP statute was
likely contrary to the policies behind no contest clauses, in that it would increase litigation costs
and potentially cause delay. However, the court reasoned that the clear and unambiguous

3. language of the anti-SLAPP statute required its application in this context and that application of
the anti-SLAPP statue was not at odds with any provision of the Probate Code. Based on the
foregoing, the Court indicated that its hands were tied, but clearly invited the legislature to make
this change: “There may be valid reasons to exempt enforcement of no contest clauses from the
anti-SLAPP statute, but if so, it is for the Legislature to create an exception.”[5]
Important Takeaways From Urick
Urick is a valuable tool for litigators seeking to contest a will or trust, and inversely, serves as
dangerous pitfall for the unwary fiduciary or heir seeking to enforce a no contest clause. A party
will no longer be afforded the luxury of pursuing enforcement of a no contest clause in
questionable circumstances. Instead, he or she will need to preliminarily assess the applicability
of the no contest clause and the reasonable probability of prevailing before initiating any
enforcement proceeding. While a justified and well drafted petition may survive an anti-SLAPP
motion, significant expenses will undoubtedly be incurred defending against the motion itself.
Moreover, if the arguments set forth in the anti-SLAPP motion are persuasive and the motion is
granted, the enforcing party will be forced to pay the legal expenses of the contestant. This
automatic attorneys’ fee provision, however, is not reciprocal, as the court may only award
attorneys’ fees to the prevailing party of an unsuccessful anti-SLAPP motion, if said motion was
frivolous or brought solely to cause unnecessary delay.[6] Consequently, the risk to a contestant
in bringing an anti-SLAPP motion in this context is minimal as compared to the risk to the
enforcing party. Thus, this holding will likely result in fewer attempts to enforce such no contest
clauses in the future.
Familiarity with the Urick decision and the underlying anti-SLAPP legislation is therefore
essential to any attorney bringing or defending a will or trust contest. The case highlights the
need to exercise caution in the form and relief sought in any enforcement of a no contest clause
and more generally when bringing petitions in trust and estate litigation. This case also serves as
yet another example of why it is important for any litigation attorney practicing in probate court
to be qualified and well versed in the uniquely applicable law and procedures.
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[1] See Prob. C. § 21310 et seq.
[2] (2017) 15 Cal.App.5th 1182.
[3] “Resolution of an anti-SLAPP motion involves two steps. In the first step, the moving party
must establish that the claim at issue arises from free speech or petitioning activity protected by
section 425.16 [as] an act in furtherance of a person’s right of petition or free speech under the
United States or California Constitution. . . .If the moving party establishes that the claim arises
from protected activity, the burden shifts to the opposing party to demonstrate a probability of

4. prevailing on the merits. This second step has been compared to a summary judgment-like
procedure.” Id. at 1191 (internal citations omitted).
[4] For example, the caption and attorney signature block of Dana’s petition “stated the attorneys
represented Dana, without identifying her as trustee”, and Dana signed a verification which did
not state that she was filing as a trustee. And perhaps most telling, was Dana’s invocation of
Civil Code section, 3399, which allowed reformation of a written instrument by “an aggrieved
party”; Dana was aggrieved as a beneficiary, but not as trustee. See id. at 1195-96.
[5] Id. at 1195.
[6] See Code Civ. Proc. §§ 128.5, 425.16(c).