A “no contest clause” in a testamentary trust does not violate California public policy even if one beneficiary’s contest voids other non-contesting beneficiaries’ bequests. (Tunstall v. Wells (2nd Dist., Div. 1, 10/30/2006) B188711.) In Tunstall v. Wells, supra, a trustor formed a testamentary trust providing bequests to his five children. The father left $50,000 to three of his children with the remainder distributed to the other two. The trust contained the following no contest clause:

“For the purpose of this paragraph [the no contest clause], if any one of the Trustor’s daughters, ROBYN, JUDITH and/or DIANNE, should be the contesting person as described above, then in that even the gift [sic] to all three daughters are hereby revoked.”

Through the “safe harbor” provision of Probate Code section 21320, Robyn successfully persuaded the trial court that the no contest clause was “contrary to public policy” in that it encouraged collusion, was overbroad, and violated due process of the non-contesting beneficiaries. On appeal, the remaindermain beneficiaries argued the clause undisputedly expressed their father’s clear intent and that, although unpleasant to some, it does not violate public policy.

In a question of first impression in California, the Court of Appeal reversed the lower court and held the no contest clause does not violate public policy. The Court noted that the only difference between this “no contest clause” and a standard one expressly permitted by statute in California is that this one “brings forfeiture of the others’ bequests.” The Court acknowledged that some persons may consider this clause “unfair,” but it stressed that the well-defined intentions of the testator will be respected. Most interestingly, following the reasoning of an analogous New Jersey case, the Court considered the father knew the interpersonal dynamics involved with his children and intentionally treated them as a group to minimize needless litigation. The Court stated:

“Unlike the trial court and us, [the testator] knew his three daughters. He clearly showed an intent to treat them as a group, both by the identical bequests and by the no contes clause. This might be because [the testator] believed that the three sisters tended to act as a group, and he might have designed his amended forfeiture clause precisely to discourage them from colluding in contesting the suit by forcing them to risk all their gifts to challenge the Trust, rather than only one of the three bequests.”

Though it addressed and discounted other public policy arguments, the driving lesson practitioners and their clients should take from Tunstall v. Wells is that a testator is able to demand consensus from his or her beneficiaries after death through a “no contest clause.” For a testator that wants to devise his estate to beneficiaries that do not necessarily get alone, drafting a carefully tailored Tunstall “no contest clause” may be a good answer.

Many readers are likely familiar with the Terri Schaivo case and the controversy surrounding it. The basic controversy was over whether Ms. Schiavo was “brain dead” or disabled. Despite court findings that her brain was not working (based on medical evidence) and that she did not wish to be kept alive under the circumstances, her parents strongly contended that she was disabled and not beyond hope. Her husband, however, contended that his wife had told him that she did not want to be kept alive artificially if her brain was not functioning.

The major hot-button issue raised in this case is whether a person completely incapable of caring for herself, yet not being kept alive by machines, should be artificially fed, or whether food and water should be withheld, resulting in certain death.

A secondary issue concerns the wisdom of the chief executives and legislatures of both the state of Florida and the U.S. taking an active role in the case of an individual patient.
The more fundamental questions, however, concern the extent of an individual’s right of self-determination when it comes to end of life issues and whether artificial feeding and water fall within the same category as respirators and other machines which artificially keep one alive.

Here in California, as is the case in most states, this entire situation could have been prevented had Ms. Schiavo made her wishes clear in a written instrument prepared and executed in accordance with the legal formalities. California uses the Advance Healthcare Directive (“Directive”), a document that has three primary purposes.

First, the Directive allows one to pre-select who will make medical decisions in the event a person cannot make the decision himself. Second, the Directive allows a person to make decisions regarding what types of treatment are to be provided or withheld. Third and most important for purposes of the present discussion, the Directive allows the individual to make a statement about the withdrawal of life support in the event of a prognosis of “brain death” without any reasonable hope of recovery.

Highly significant in light of the Schiavo case, is the definition of healthcare decisions under California law, which includes the decision to withhold artificially provided food and water. Accordingly, a person may designate ahead of time that they do not want food and water to be administered after a brain death diagnosis is given.

There are several types of Directives available in various forms. Many hospitals and doctors utilize an American Medical Association form, while California has a statutory form that can also be used. Many estate planning attorneys, including the author, use an attorney-drafted form that can more easily be molded to fit a given situation.

Clients who have executed Directives more than five years ago may have utilized the old Power of Attorney for Medical Decisions and a Declaration under the California Natural Death Act. Documents properly executed under these now defunct statutes are generally legally acceptable, but as time goes on, there may be more and more difficulties arising with respect to the use of these old forms.

In addition, anyone who has a medical power of attorney more than 12 years old should check the form to see if it has expired , for under prior law the older forms were limited to a seven year duration. Obviously, anyone who has questions should contact an attorney.

One final point: a healthcare directive is one vital aspect of a comprehensive estate plan. No other document – living trust, will or financial power of attorney – provides the legal authority over medical and end of life decisions.

The author, Doug Griffin, is an owner in the law firm and has been practicing in estate planning and probate for more than 12 years. Anyone interested in undertaking any estate planning matters may give him a call for a no-cost consultation.