Hermanson

Jenny, Josh, and Robert Hermanson, beneficiaries of the Esther R. Hermanson Trust (the trust), challenge an order declaring the trust’s “no contest” clause would be violated by their proposed petition to remove the trustees for malfeasance. They concede their petition runs afoul of the trust’s no contest clause, but argue enforcement of that provision is barred by section 21305, subdivision (b)(6) and (7). We disagree.

Per section 21305, subdivision (b)(6) and (7), a petition challenging the exercise of fiduciary power and requesting the removal of a fiduciary does not violate a no contest clause in a will as a matter of public policy. But subdivision (b) applies “only to instruments of decedents dying on or after January 1, 2001, and to documents that become irrevocable on or after January 1, 2001.” (§ 21305, subd. (d).) Because the trust became irrevocable upon Esther’s death in December 2000, we conclude section 21305, subdivision (b), is not determinative. Whether a petition would violate a no contest clause predating section 23105 would normally be resolved by applying the law in existence before the statute was enacted. We do not do so here because plaintiffs did…