In Meiri v. Shamtoubi the beneficiary was treated as having predeceased the trustor (i.e., lost her inheritance) where the beneficiary triggered the no contest clause by filing a petition that was a direct contest of the trust, and it was held that her contest was brought without probable cause because she filed her contest more than 120 days after the section 16061.7 notice. Meiri v. Shamtoubi, California Court of Appeal, Second Appellate District, July 25, 2022, Case No. B310619.

The holding in Meiri probably appears straightforward or perhaps even obvious, but that isn’t necessarily correct.

The contest petition alleged undue influence and fraud both of which constitute direct contests of the trust pursuant to Cal. Probate Code section 21310. Appellant made various arguments that the allegations in the petition were not a direct contest of the trust. The Court held that whether or not a petition constitutes a direct contest is determined by the allegations that are asserted and not by what the petition is called or when the petition is filed.  

The decision also contains a discussion about how “probable cause” or “without probable cause” are to be evaluated and determined under Cal. Probate Code section 21311. The Court held that filing the contest petition more than 120 days after services of the section 16061.7 notice (in violation of the statutory 120-day filing deadline) constituted filing the contest petition without probable cause because the contest petition was filed after the statutory deadline.

Contestant argued that whether or not there was probable cause must be determined by the substance of the matter rather than procedural impediments, and that the statute specifically references the opportunity for further investigation and discovery. The Court held that any legally sufficient bar to relief – whether procedural (e.g., a statute of limitations defect) or substantive – is sufficient to satisfy the section 21311(b) “without probable cause” criteria.

I do have some concern or caution that the Court’s apparently straightforward view or approach under the facts in Meiri might be different under different facts. For example, a few years ago I had a case in which the contest of the trust also was filed more than 120 days after service of the section 16061.7 notice but we successfully argued that the 16061.7 notice was invalid because the trustee failed to disclose all of the terms of trust – in our case the trustee did provide a copy of the trust, there were also other terms of the trust that the trustee did not provide which needed to be provided so that the beneficiary had sufficient information to determine whether or not to contest the trust.   

Thanks for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.