Funsten v. Wells Fargo Bank, N.A.

The 2008 repeal of Probate Code section 21230 bars later-filed suits for a declaration that a proposed suit would not be a “contest” within a no-contest clause’s scope, even if the underlying will or trust was executed before 2008.  The repeal of Prob. Code 21230 effective in 2008 was procedural in nature and applied immediately, barring suits for a declaration that a proposed suit would not be a “contest” within a no contest clause’s scope—even if, as here, the will or trust had been executed long before 2008.  So plaintiff’s appeal from denial of his 2013 suit for such a declaration without regard to whether his proposed action was or was not a “contest.”  Creditor’s claims that plaintiff filed in his father’s estate were not contests of his father’s will since that instrument did not make any bequests to plaintiff, it only exercised powers of appointment under pre-established trusts.  And the creditor’s claims were not contests of the trusts since the claims alleged that the father had breached his fiduciary duties as a trustee.  Petitions alleging a breach of fiduciary duties by an executor or trustee are, by statute, not subject to no contest clauses.

California Court of Appeal (Ruvolo, P.J.); August 1, 2016 (partial publication August 25, 2016); 2016 WL 4084233

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