This blog has previously mentioned the most common question we hear when people find out we work in probate litigation: “What can I do to make sure my family doesn’t fight over my property after I die?” Because I am a Fundamentally Honest Person (FHP for short!), I usually tell them the truth: “Nothing, really.”

But you are probably a more optimistic person than I am, with a strong aversion to engaging in doom and gloom in that kind of casual scenario. What’s more, you are probably a much better attorney than I am. Quite frankly, you are probably something of an estate planning impresario: an attorney capable of crafting a no-contest clause that is so strong, so protective, and so wonderfully intimidating that no beneficiary would ever dream of contesting the will or trust to which it is attached. Truly, the descendants of the testators lucky enough to be your clients will enjoy a degree of prosperity and familial harmony previously thought impossible.

To which I say: slow down. You are caught up in what the Greeks called hubris: excessive pride or overconfidence that frequently leads to a downfall. And, at least as portrayed in Greek mythology, that downfall usually took a uniquely ironic form. Think Icarus: a man blessed with the power of flight, only to see his wings melt when he flew too close to the sun.

I expect that the estate planner who drafted the trust at the heart of Key v. Tyler felt a bit like Icarus. He or she worked up a detailed trust instrument with an exceptionally strong no-contest clause. He or she probably patted themself on the back for a job well done, and was particularly proud of their work on the no-contest clause.

Unfortunately for that estate planner, it seems that the gods of estate planning, like the Greek gods of mythology, do not particularly care for hubris. Rather than paving the way for generations of familial harmony, the trust underlying Key v. Tyler has been the subject of litigation for 13 years. And, in an especially ironic twist that would leave Icarus shaking his head, at least seven years of that litigation have been spent arguing over the meaning of the no-contest clause itself.

This blog covered a prior holding by the Court of Appeal in the Key v. Tyler case in 2019. Five years later, the Court of Appeal has made its fourth ruling on the matter – in Key v. Tyler (2024) ___ Cal.5th ___. And five years later, the parties are still fighting over the meaning of the no-contest clause.

Respondent Elizabeth Tyler had used undue influence to cause her mother to amend the trust in 2007. Her sister, appellant Sarah Key, petitioned the probate court to declare the 2007 amendment invalid. The court granted the petition, and the Court of Appeal’s 2019 ruling held that Tyler’s defense of the invalid 2007 amendment constituted a contest of the original trust, leaving Tyler potentially disinherited under the trust’s no-contest clause.

In this latest round, the parties moved on to fighting over the scope of that disinheritance. Tyler noted that while the original trust had a no-contest clause, there was no such clause in the trust’s (valid) 2003 amendment. So, Tyler argued, while she may be disinherited from the gifts made under the original trust instrument, she should not be disinherited from the gifts governed by the 2003 amendment.

Tyler’s argument made some sense. California law very narrowly defines the type of contest that will trigger a no-contest clause. In relevant part, a no-contest clause will be enforced only on a challenge to the specific instrument containing the no-contest clause. That is to say, if Tyler had brought a challenge to the 2003 amendment (which did not have a no-contest clause), she probably could have kept her inheritance.

But that is not what happened here. Here, Tyler was held to have contested the original trust instrument, which most definitely did have a no-contest clause. And while California law is very restrictive as to what type of challenge will trigger a disinheritance, there are no similar restrictions on the scope of the resulting disinheritance. To use an old law school thought exercise, once you’ve pulled the trigger, you can’t control where the bullet will go.

Without limitations under the law, the language of the no-contest clause is controlled. And this no-contest clause was particularly broad: it mandated that a contesting beneficiary be disinherited “of all such legacies, bequests, devises, and interest given under this trust . . . .” Which is to say, a beneficiary found to have violated the no-contest clause would be disinherited of all gifts made under the trust, and not only those made by those trust documents containing the no-contest clause.

So perhaps our estate planning impresario can take some pride in his work after all? While the no-contest clause may not have entirely precluded conflict, in the end, it did its job—the trust instrument survived, and the trust assets will finally be distributed per the settlors’ intent.

Except not yet! Like all good ironic punishments from on high, there was one final twist – rather than resolve the matter entirely, the Court of Appeal remanded it for further proceedings in the probate court. That is to say, the parties will now continue with their fourteenth year of litigation. Oh hubris, you win again.

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