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Knaplund Comments on Inheritance Law in Daily Journal

KristineKristine S. Knaplund, professor of law, shared expertise with the Los Angeles Daily Journal in an article about new inheritance challenges on August 17. Read the full text of the article below.

Knaplund began her career in law teaching in 1983 at UCLA Law School, where she was honored with the law school's Rutter Award for Excellence in Teaching in 1991, the University-wide Harriet and Charles Luckman Distinguished Teaching Award in 1995, and the 1997 graduating class' Professor of the Year Award.

She joined the faculty of Pepperdine University School of Law in 2002, and teaches Property, Wills and Trusts, Advanced Wills and Trusts, and the Bioethics Seminar. In 2006 she received the 1L Professor of the Year Award, and in 2008 she received the University's Howard White Award for Excellence in Teaching.

Knaplund is an Academic Fellow of the American College of Trust and Estate Counsel, and currently serves as chair of the ABA Committee on Bioethics. She has served on the board of trustees of the Law School Admission Council, and also been active for many years on the LSAC Minority Affairs Committee and the LSAC Test Development and Research Committee.

Before moving to Los Angeles, she practiced law with Queens Legal Services in New York City and with a private law firm in New York and Washington, D.C., primarily in the area of plaintiffs' Title VII employment discrimination. She has also served as a full-time volunteer attorney with the NAACP Legal Defense and Education Fund in New York. She is a member of the New York bar, and also a member of the Estate Planning, Trust and Probate Section of the California bar.

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'Safe Harbor' Lost in Inheritance Challenges

By Ciaran McEvoy
Daily Journal Staff Writer

If you're disappointed with the amount of money a relative left you, but the will states you will forfeit your inheritance if you contest it, using the courts to get what you think you deserve will soon be riskier.  

Effective Jan. 1, 2010, California abolished so-called "safe harbor" petitions, which permitted heirs to an estate to ask a court if their particular gripe against a no-contest will or trust would be considered a direct contest to it before gambling on filing the case.

Potential plaintiffs enjoyed the relative safety the declaratory petitions gave them and attorneys liked the buffer against malpractice suits that came with them.

"It gave [potential plaintiffs] early warning of a problem," said Susan T. House of Hahn & Hahn in Pasadena.

But the old system came at a cost - it made probate courts inefficient, according to legal experts.

"They doubled the things the courts had to deal with," said Andrew M. Katzenstein, of Proskauer Rose in Los Angeles.  

Seeking to cut down on courtroom paperwork and waste, the California State Legislature abolished the petitions, taking away one safety net for potential will contestants.  

Estate planning attorneys now have to more carefully look before they leap into bringing a will challenge when a no-contest clause exists.

 "You have to be more careful," said Lynard C. Hinojosa of Hinojosa & Wallet in Los Angeles.

The Legislature also gave parties some guidance: the new law more clearly defined what constitutes a direct contest.

"The previous law never told you what is a contest," said Kristine S. Knaplund, a professor at Pepperdine University School of Law. "It told you what is not a contest."

The Legislature's definition: fraud, undue influence, revocation, forgery and lack of capacity are all examples of grounds for a direct contest. But even seasoned trusts and estates attorneys have trouble defining just exactly what terms such as "undue influence" mean.

"There is never the same fact pattern," said Alan T. Yoshitake of Seyfarth Shaw in Los Angeles. "There are always nuances."

Perhaps most importantly, the new law permits potential plaintiffs to recoup their inheritance even if they directly challenge the validity of a will or trust and lose as long as a judge finds they had "probable cause" to bring their legal challenge.

But potential plaintiffs debating whether or not to challenge a will won't know for certain if they have probable cause to bring a court challenge until far along the path, legal experts said.

"That's the head of the needle the potential claimant is balancing on," Katzenstein said.

While the new law does not go as far as some estate attorneys want - abolishing no contest clauses entirely - some attorneys expect it will reduce the number of frivolous challenges to wills.

"To the average practitioner, the absence of the safe harbor petition makes it somewhat less likely that you'll file the challenge [to a will or trust]," said Howard S. Klein of Feinberg Mindel Brandt & Klein in Los Angeles.

Once again, lawyers are unsure what exactly defines "probable cause" and are waiting for California's appellate courts to take up the issue.

"I don't know if we're in the best of all worlds or the worst of all worlds," said Marshal A. Oldman of Oldman Cooley in Encino. "We may be years away before we have any court definition."

Published with permission from the Daily Journal.