Pihlajamaa

I respectfully dissent.

I

Although I agree with my colleagues’ determination that parol evidence was admissible in determining whether Maria’s domestic partnership claim would be a contest within the meaning of the no contest clause in Viljo’s will, I do not adopt the majority’s narrow interpretation of the remedies available under the safe harbor provisions of Probate Code 1 section 21320. As they have interpreted the statute, it does not provide anything close to a safe harbor for beneficiaries of wills and trusts. In fact the majority’s interpretation will simply recreate the “River Boat” gamble the Legislature plainly intended to eliminate.

In recommending enactment of former section 21305, the statutory predecessor to section 21320, the Law Revision Commission stated: “A major *1139 concern with the application of existing California law is that a beneficiary cannot predict with any consistency when an activity will be held to fall within the proscription of a particular no contest clause. To increase predictability, the proposed law recognizes that a no contest clause is to be strictly construed in determining the donor’s intent. This is consistent with the public policy…

*1126 Opinion

Aune Maria Pihlajamaa (Maria) appeals an order denying her Probate Code section 21320 1 petition (Petition) for a determination whether her proposed action (Proposed Action) to enforce an alleged domestic partnership agreement with and interpret the will of Viljo Peter Kaila (Viljo) would be a contest under the no contest clause of Viljo’s will. Maria contends the trial court erred by concluding (1) extrinsic evidence was admissible to interpret the no contest clause, and (2) admission of extrinsic evidence to interpret that clause would require a determination of the merits of her Proposed Action and therefore section 21320 relief was precluded. We reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Although Viljo and Maria never married, they apparently lived together for over 30 years. In 1992 Viljo executed a will (Will) that, inter alia, devised 20 percent of his estate to Maria if she survived him and divided the remainder of his estate among his seven brothers and sisters. 2 Viljo nominated Maria and his brother Vemer Kaihlan (Vemer) to be co-executors of the Will. The Will contained the following no…