Filed 5/28/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SARAH PLOTT KEY,

Plaintiff and Appellant,

v.

ELIZABETH PLOTT TYLER et al.,

Defendants and Respondents.

B322246

(Los Angeles County

Super. Ct. No. BP131447)

APPEAL from an order of the Superior Court of Los 

Angeles County. Daniel Juarez, Judge. Reversed and remanded

with directions.

Oldman, Sallus & Gold, Mary-Felicia Apanius, Marshal A. 

Oldman; Wershow & Cole and Jonathan A. Wershow for Plaintiff 

and Appellant.

Magee & Adler, Eric R. Adler; Murphy Rosen, Paul D. 

Murphy and Daniel N. Csillag for Defendant and Respondent 

Elizabeth Plott Tyler.

Greenberg Glusker Fields Claman & Machtinger and Marc 

M. Stern for Respondents William O. Gamble III and James W. 

Sullivan.
2

Sarah Plott Key (Key) appeals from an order denying a 

petition she filed in probate court to disinherit her sister, 

Elizabeth Plott Tyler (Tyler). The petition sought to enforce a “no

contest” clause in a 1999 trust established by the sisters’ parents, 

Thomas E. Plott (Thomas) and Elizabeth R. Plott (Elizabeth).

1

This case has a lengthy appellate history. There have been 

three prior appeals of orders concerning the same 1999 trust.

2

Indeed, this is the second time we have considered the same 

petition that is at issue in this appeal. In Key v. Tyler II we 

reversed the probate court’s order striking Key’s petition under 

the anti-SLAPP statute (Code Civ. Proc., § 425.16). We held that: 

(1) the anti-SLAPP statute applies to a petition to enforce a no

contest clause; and (2) Key adequately demonstrated a likelihood 

of success on her petition. With respect to this second point, we 

concluded that Tyler’s judicial defense of the 2007 Amendment 

that she had procured through undue influence constituted a 

1 Several different trust provisions are at issue in this 

appeal. We use the general term “Trust” to refer to the entire 

trust that Thomas and Elizabeth created, including an

amendment that they executed in 2003. We refer to that 

amendment as the “2003 Amendment,” and we refer to the Trust 

as it existed prior to that amendment as the “Original Trust.” 

We use the term “2007 Amendment” to refer to the purported 

amendment that Elizabeth executed in 2007 and that prior 

proceedings in this case have established Tyler procured through 

undue influence.

2 Those three prior appeals are Key v. Tyler (June 27, 2016, 

B258055, mod. June 29, 2016) [nonpub. opn.] (Key v. Tyler I); Key 

v. Tyler (2019) 34 Cal.App.5th 505 (Key v. Tyler II); and Key v. 

Tyler (Aug. 30, 2021, B298739, mod. Aug. 31, 2021) [nonpub. 

opn.].
3

direct contest of the Trust. We also concluded that Key had 

provided sufficient evidence that Tyler lacked probable cause to 

defend that amendment in court. (Key v. Tyler II, supra, 34 

Cal.App.5th at p. 510.)

On remand from that appeal, Tyler raised a new issue: 

whether the lack of a no contest clause in the 2003 Amendment 

that the parents executed to change the distribution of the 

Trust’s residue means that Tyler’s share of the assets distributed 

under the terms of that amendment are exempt from forfeiture. 

The trial court concluded that they were. We disagree and 

therefore reverse.

Our holding rests upon the plain language of the Original 

Trust’s no contest provision (the No Contest Clause) in light of a 

key issue of law that is now beyond dispute. Tyler cannot, and 

does not, ask us to revisit our holding in Key v. Tyler II that her 

defense of the 2007 Amendment in court was a direct contest of 

the Trust. Under Probate Code section 21311, such a direct 

contest, if “brought without probable cause,” provides a legally 

sufficient basis to enforce a no contest clause. (Prob. Code, 

§ 21311, subd. (a)(1).)3 Indeed, Tyler does not dispute that her 

share of personal property that is expressly specified in the 

Original Trust is subject to forfeiture. She claims only that her 

share of the assets that the 2003 Amendment specifies is exempt

from the consequences of her direct contest.

The claim is untenable in light of the language of the No

Contest Clause. That clause requires that, if a beneficiary

contests the Trust, the Trustors shall “disinherit” that 

3 Subsequent undesignated statutory references are to the 

Probate Code.
4

beneficiary, and that all interests given to that person “under this 

Trust” are to be forfeited. Thus, the plain language of the No

Contest Clause requires that, if Tyler lacked probable cause to

contest the Trust, she must be disinherited. No statute limits the 

scope of the forfeiture that the No Contest Clause may impose. 

Tyler’s share of the Trust’s residual monetary assets is therefore 

not exempt from forfeiture simply because her specific share was 

specified by a subsequent amendment that does not contain a no

contest clause.

BACKGROUND

Our prior opinions discuss the background facts in detail. 

We therefore only briefly summarize the key facts and the 

particular Trust documents relevant to this appeal.

1. The Original Trust

Thomas and Elizabeth (together, the Trustors) created the 

Original Trust in 1999. They were designated as both Trustors 

and Trustees, and had the power to revoke the Trust as to their 

share of the marital property during their joint lifetimes. The 

Trustors had three children: Tyler; Key; and a third sister not 

involved in this litigation, Jennifer Plott Potz (Potz).

Upon the death of the first trustor, the Trust estate was to 

be divided into three subtrusts: (1) the Survivor’s Trust; (2) the 

Marital Trust; and (3) the Exemption Trust. The Survivor’s 

Trust consisted of the surviving trustor’s separate property and 

the surviving trustor’s community property share of the trust 

estate, along with household items. The Marital Trust was to 

include the maximum permissible amount of the deceased 

trustor’s estate that could pass without tax liability under the 

federal marital tax deduction. The Exemption Trust included the 

remainder of the Trust estate.
5

The Original Trust also created a Residual Trust, which 

was created to receive assets flowing from the other three 

subtrusts for distribution to the beneficiaries upon the death of 

the surviving trustor.

After the first trustor’s death, the Survivor’s Trust 

remained revocable, but the Marital Trust and the Exemption 

Trust became irrevocable. The surviving trustor also retained 

the power by will or codicil to direct the distribution of the 

Survivor’s Trust upon the surviving trustor’s death. Absent such 

direction, the Original Trust provided that, upon the death of the 

surviving trustor, the personal effects in the Survivor’s Trust 

(with the exception of a grand piano which was to be given to 

Key) would be distributed in equal portions to the three children. 

The remainder of the assets in the Survivor’s Trust would flow 

into the Residual Trust.

The surviving trustor had the right to receive the net 

income from the Marital Trust and the Exemption Trust during 

the surviving trustor’s life. The surviving trustor also had the 

right to change the manner in which the Trustors’ issue would 

receive their shares from those sub trusts. However, the 

surviving trustor could not change the amount of those shares. 

Unless the surviving trustor made such a change, upon the 

surviving trustor’s death the assets remaining in the Marital 

Trust and the Exemption Trust were to flow into the Residual 

Trust.

In Article Seven of the Original Trust, the trustors 

specified the shares of the Residual Trust that the beneficiaries 

were to receive from the assets flowing into that trust after the 

death of the surviving trustor. Those assets were to be divided 
6

and distributed in shares consisting of 50 percent to Tyler, 

35 percent to Potz, and 15 percent to Key.

Article Fourteen of the Original Trust contains the No 

Contest Clause. The clause provides in part that “if any devisee, 

legatee or beneficiary under this Trust, or any legal heir of the 

Trustors or person claiming under any of them directly or 

indirectly (a) contests either Trustor’s Will, this Trust, any other 

trust created by a Trustor, or in any manner attacks or seeks to 

impair or invalidate any of their provisions, . . . then in that 

event Trustors specifically disinherit each such person, and all 

such legacies, bequests, devises, and interest given under this 

Trust to that person shall be forfeited as though he or she had 

predeceased the Trustors without issue, and shall augment 

proportionately the shares of the Trust Estate passing under this 

Trust to, or in trust for, such of Trustors’ devisees, legatees and 

beneficiaries who have not participated in such acts or 

proceedings.”

2. The 2003 Amendment

The 2003 Amendment, executed separately by Thomas and 

Elizabeth in that year, is a one-page document that amended 

Article Seven of the Original Trust governing the Residual Trust. 

The 2003 Amendment changed the shares to be distributed to the 

three children from the Residual Trust so that Tyler, Key, and 

Potz would each receive a one-third share. The 2003 Amendment 

does not contain a no contest provision.

3. The 2007 Amendment

Thomas died in 2003. Following his death, Tyler used her 

influence over Elizabeth to obtain the 2007 Amendment. (Key v. 

Tyler II, supra, 34 Cal.App.5th at pp. 511–512.)
7

The 2007 Amendment revised Article Four of the Original 

Trust governing the Survivor’s Trust. It changed the 

requirements for the distribution of property from the Survivor’s 

Trust following Elizabeth’s death. (See Key v. Tyler II, supra, 34 

Cal.App.5th at p. 512.)

Under the revised distribution scheme, Key was to receive 

only “[a]n amount equal to the lesser of $1,000,000, or 5% of the 

then Survivor’s Trust Estate less any amount owed on any 

outstanding promissory note in favor of the Surviving Trustor.” 

Tyler was to receive 65 percent of Elizabeth’s interest in the 

family’s nursing home business entities and 50 percent of 

Elizabeth’s remaining assets. Potz was to receive 35 percent of 

Elizabeth’s interest in the business entities and the other 

50 percent share of Elizabeth’s remaining assets. These shares 

were to be distributed to Tyler and Potz through the Residual 

Trust.

The 2007 Amendment also gave Tyler the Beverly Hills 

home that Elizabeth owned, along with its contents.

4. Prior Proceedings

Key filed a petition to invalidate the 2007 Amendment on 

the ground of undue influence. Following a trial in 2013, the

probate court granted that petition. This court affirmed the 

probate court’s order in Key v. Tyler I.

Following remand from that decision, Key filed a petition to 

enforce the No Contest Clause (the No Contest Petition). Tyler 

responded with a motion to strike that petition under the antiSLAPP statute (Code Civ. Proc., § 425.16).

The probate court granted Tyler’s anti-SLAPP motion on 

several grounds. As is relevant to this appeal, the court 

concluded that Tyler had not directly contested the Trust because 
8

she did not initiate any legal proceedings challenging the Trust, 

but instead simply defended the 2007 Amendment against the 

challenge that Key brought. Furthermore, the court concluded 

that Key had failed to show that Tyler lacked probable cause to 

defend the 2007 Amendment.

We reversed this order in Key v. Tyler II. On the issue of 

whether Tyler’s defense of the 2007 Amendment constituted a 

direct contest, we held that Tyler’s pleadings defending the 2007 

Amendment alleged the “ ‘invalidity of a protected instrument,’ ” 

and “therefore met the statutory definition of a direct contest” 

under section 21310. (Key v. Tyler II, supra, 34 Cal.App.5th at 

p. 524.) We also held that Key had made a sufficient showing 

that Tyler lacked probable cause for her defense of the 2007 

Amendment to warrant denial of Tyler’s anti-SLAPP motion. 

However, we emphasized that Key’s showing did not establish 

the absence of probable cause as a matter of law. (Id. at p. 539.) 

We noted that the “legal standard for invalidating an instrument 

based upon undue influence and the standard for finding a lack of 

probable cause to believe the instrument was valid are different.” 

(Ibid.) We remanded for further proceedings on Key’s No Contest 

Petition. (Id. at p. 541.)

Following remand, Tyler moved to bifurcate the trial on 

Key’s No Contest Petition. Tyler argued that there was a 

preliminary, and potentially dispositive, issue arising from the 

absence of a no contest provision in the 2003 Amendment. Tyler 

claimed that the absence of such a provision means that the 2003 

Amendment is not a protected instrument under section 21310, 

subdivision (e), and that Tyler’s share of the assets from the 

Residual Trust specified by the 2003 Amendment is therefore not 

subject to forfeiture.
9

The probate court agreed and, on its own motion, denied 

Key’s No Contest Petition with prejudice. The court concluded 

that the 2003 Amendment is not a protected instrument because 

(1) it does not itself contain a no contest provision, and (2) no 

other document containing a no contest clause references the 

amendment. The court rejected Key’s argument that the law of 

the case doctrine foreclosed Tyler’s argument, concluding that 

this court’s prior holding in Key v. Tyler II did not bind the court 

“to find that the no contest clause in the original trust extends to 

and subsumes the Amendment.”

The probate court’s order did not expressly address 

whether Tyler’s interest in the assets distributed through the 

Residual Trust is subject to forfeiture based upon her direct 

contest of the Original Trust.

DISCUSSION

1. Standard of Review

The interpretation of a trust instrument is an issue of law 

unless there is a conflict in extrinsic evidence. (Burch v. George 

(1994) 7 Cal.4th 246, 254 (Burch).) In light of that principle, all 

parties agree that this court should review the probate court’s 

order de novo.

2. The Original Trust’s No Contest Clause Applies 

to Assets that Tyler Would Inherit from the 

Residual Trust

There is no dispute that Tyler’s defense of the 2007 

Amendment in court constituted a direct contest of the Original 

Trust. Our opinion in Key v. Tyler II so held. Tyler also concedes 

the point, agreeing that the “Original Trust is a protected 

instrument from which she could be disinherited if she did not 

contest it with probable cause.”
10

Thus, the dispositive issue in this appeal is the consequence

of Tyler’s direct contest. Tyler claims that the forfeiture resulting 

from her direct contest could include only her share of the assets 

that is directly controlled by the body of the Original Trust. Tyler 

argues that those assets are limited to her share of the personal 

property identified in Article Four of the Original Trust, which

the 2007 Amendment changed. Tyler claims that she cannot be 

precluded from receiving her designated portion of the financial 

assets distributed through the Residual Trust because those 

assets are “controlled by” the 2003 Amendment, which is not a 

protected instrument.

Before discussing the merit of this argument, we consider 

the effect of our prior opinion.

a. Key v. Tyler II established only the 

existence of Tyler’s direct contest, not its 

consequence

Key claims that the only issue left open after our opinion in 

Key v. Tyler II was whether Tyler had probable cause for her 

judicial defense of the 2007 Amendment. Thus, she claims, Tyler 

is precluded by the law of the case doctrine from arguing now 

that her share of assets controlled by the 2003 Amendment is

exempt from forfeiture. We disagree.

Under the law of the case doctrine, “ ‘[t]he decision of an 

appellate court, stating a rule of law necessary to the decision of 

the case, conclusively establishes that rule and makes it 

determinative of the rights of the same parties in any subsequent 

retrial or appeal in the same case.’ ” (Leider v. Lewis (2017) 2 

Cal.5th 1121, 1127, quoting Morohoshi v. Pacific Home (2004) 34 

Cal.4th 482, 491.) However, for the doctrine to apply, the prior 

decision must have actually decided the point of law at issue, 
11

either expressly or implicitly. (Leider, at p. 1127.) “ ‘Generally, 

the doctrine of law of the case does not extend to points of law 

which might have been but were not presented and determined in 

the prior appeal.’ ” (Ibid., quoting Estate of Horman (1971) 5 

Cal.3d 62, 73.)

The scope of the potential forfeiture resulting from Tyler’s 

direct contest of the Original Trust under the language of the No

Contest Clause is an issue of law involving the interpretation of a 

written instrument to which the law of the case doctrine could 

apply. (Stockton Citizens for Sensible Planning v. City of 

Stockton (2012) 210 Cal.App.4th 1484, 1498 [Supreme Court’s 

prior construction of a city’s letter approving a project “is 

obviously a question of law to which the doctrine of law of the 

case applies”].) But our decision in Key v. Tyler II did not decide 

that issue.

In Key v. Tyler II, we decided only that Key had provided 

sufficient evidence of a probability of success on her No Contest 

Petition to defeat Tyler’s anti-SLAPP motion. As mentioned, in 

reaching that conclusion we also decided the legal issue that 

Tyler’s defense of the 2007 Amendment in court was a direct 

contest of the Original Trust. We did so because Tyler raised as a 

defense to the merits of Key’s No Contest Petition that Tyler did 

not initiate any judicial action challenging the trust. (Key v. 

Tyler II, supra, 34 Cal.App.5th at p. 523.)

However, Tyler did not present any defense to the merits of 

Key’s petition based upon the absence of a no contest clause in 

the 2003 Amendment. We therefore did not decide whether the 

absence of such a clause in the 2003 Amendment affected the 

scope of a possible forfeiture of Tyler’s interests under the No

Contest Clause.
12

Moreover, in our prior opinion we expressly disclaimed any 

intent to decide the scope of a possible forfeiture. In her 

respondent’s brief in Key v. Tyler II, Tyler made the fallback 

argument that, if Key’s No Contest Petition were to proceed, 

Tyler’s disinheritance could not extend to subtrusts other than 

the Survivor’s Trust, because that was the only subtrust affected 

by the 2007 Amendment.4 We declined to consider that 

argument because the issue related “to the scope of permissible 

relief under Key’s No Contest Petition rather than the probate 

court’s decision granting Tyler’s anti-SLAPP motion that is the 

subject of this appeal.” (Key v. Tyler II, supra, 34 Cal.App.5th at 

p. 541, fn. 19.)

Nor did our prior opinion decide whether the 2003 

Amendment is a protected instrument. Neither Tyler nor Key 

raised that issue. Moreover, it was not necessary to decide that 

question to determine if Key had presented sufficient evidence to 

survive Tyler’s anti-SLAPP motion.

Indeed, as discussed below, it is not necessary to decide 

that issue even now. While our prior opinion did not foreclose 

Tyler’s current argument about the scope of a possible forfeiture, 

the absence of a no contest clause in the 2003 Amendment is not 

relevant to our decision on the merits of that argument. As we 

explain, Tyler’s direct contest of the provisions of the Original 

Trust was sufficient to support a forfeiture even if the 2003 

Amendment is a separate, unprotected instrument.

4 We previously took judicial notice of the records from the 

prior appeals.
13

b. Under the language of the No Contest 

Clause, Tyler’s direct contest of the 

Original Trust requires forfeiture of her 

inheritance if made without probable 

cause

Unless limited by statute, the scope of the forfeiture 

required under a trust’s no contest clause depends upon the 

intent of the trustors as expressed in the language of the 

instrument. (See Donkin v. Donkin (2013) 58 Cal.4th 412, 425–

426 [the current legislative scheme governing no contest clauses 

incorporates the recommendation of the California Law Revision 

Commission that “ ‘a no contest clause should be enforceable 

unless it conflicts with public policy’ ”], quoting Recommendation: 

Revision of No Contest Clause Statute (Jan. 2008) 37 Cal. Law 

Revision Com. Rep. (2007) p. 391; Meiri v. Shamtoubi (2022) 81 

Cal.App.5th 606, 613 [whether there has been a contest within 

the meaning of a no contest clause “ ‘ “depends upon the 

circumstances of the particular case and the language used” ’ ”], 

quoting Burch, supra, 7 Cal.4th at pp. 254–255.) The language of 

a no contest clause must be strictly construed. (§ 21312; Burch,

at p. 254.) However, “even though a no contest clause is strictly 

construed to avoid forfeiture, it is the testator’s intentions that 

control, and a court ‘must not rewrite the [testator’s] will in such 

a way as to immunize legal proceedings plainly intended to 

frustrate [the testator’s] unequivocally expressed intent from the 

reach of the no-contest clause.’ ” (Burch, at p. 255, quoting Estate 

of Kazian (1976) 59 Cal.App.3d 797, 802.)

Tyler contends that the assets she would inherit from the 

Residual Trust are exempt from forfeiture because a separate, 

unprotected instrument (the 2003 Amendment) specifies her 
14

share of those assets. We therefore examine the language of the 

No Contest Clause to determine if that contention is consistent 

with the Trustors’ intent.

The forfeiture language in the No Contest Clause is 

comprehensive. As mentioned, it requires that, in the event any 

beneficiary contests “this Trust, any other Trust created by a 

Trustor, or in any manner attacks or seeks to impair any of their 

provisions,” the “Trustors specifically disinherit each such 

person,” and all interests given “under this Trust” to that person 

shall be forfeited.

The term “disinherit” is broad. Its plain meaning is that 

the Trustors intended to deny any inheritance to a beneficiary 

who contests the Trust. That general term is followed by the 

further specific consequence that a beneficiary who contests the 

Trust forfeits any interest that is “given under this Trust.”

Tyler’s interest in the assets flowing through the Residual 

Trust falls within the scope of this broad forfeiture language. 

The instruction that the Trustors intended to “disinherit” any 

beneficiary who contests the Trust is not limited to any specific 

inheritance. Tyler’s interest in assets distributed through the 

Residual Trust is certainly among those that she would inherit.

But we need not decide whether this general term would be 

sufficient to “disinherit” Tyler from some interest in assets 

distributed through a completely different trust or through some 

other instrument that is separate from the Original Trust. That 

is not the case here. Tyler’s interest in assets distributed 

through the Residual Trust also comes within the more specific 

scope of assets that are subject to forfeiture if they are “given 

under” the Original Trust.
15

The 2003 Amendment changed the percentage of assets 

that each beneficiary would inherit from the Residual Trust, but 

that is all that it did. It did not displace the structure of the 

subsidiary trusts, nor did it change how assets would flow into 

the Residual Trust. The provisions of the Original Trust that 

created and governed the Survivor’s Trust, the Marital Trust, 

and the Exemption Trust remained unaffected by the 2003 

Amendment. Under the terms of the Original Trust, each of 

those subtrusts would contribute assets to the Residual Trust. 

Each of the beneficiaries was to receive her specific individual 

share of the assets flowing into the Residual Trust under the 

terms specified in the 2003 Amendment. But those assets were 

also “given under” the overall structure of the Original Trust.

Critically, there is also nothing in the language of the No

Contest Clause suggesting that the Trustors intended to limit the 

forfeiture that would result from particular kinds of contests. To 

the contrary: The language of the No Contest Clause shows that 

the Trustors intended for it to reach as broadly as possible in 

imposing consequences for the decision to contest the Trust in 

any manner. The Trustors specified that all manner of conduct 

challenging the Trust would trigger the No Contest Clause, 

including a contest of “either Trustors’ Will, this Trust, any other 

trust created by a Trustor,” or conduct that “in any manner 

attacks or seeks to impair or invalidate any of their provisions.” 

Under the No Contest Clause, the consequences of each of these 

challenges is the same: The challenger is to be disinherited and 

must forfeit all interests she otherwise would receive “under this 

Trust.” This broad language contradicts any argument that the 

Trustors intended to limit the scope of a forfeiture only to the 
16

specific assets controlled by the particular trust provision that a 

beneficiary chooses to challenge.

Tyler points out that the forfeiture language in the No

Contest Clause does not specifically refer to a contest of a trust 

amendment. However, the absence of such a specific reference 

does not support the conclusion that the Trustors intended to 

limit the forfeiture that would apply to Tyler’s challenge here. It 

would make no sense for the Trustors to state that a beneficiary’s 

contest of “any other trust created by a Trustor” (italics added) 

would result in forfeiture, but not a contest of an amendment to 

the same trust. In any event, what the Trustors might have 

intended as a consequence for a contest directed solely against a 

subsequent amendment is ultimately not the issue here. Tyler’s 

contest was not limited to the 2003 Amendment. As discussed 

above, there is no dispute here that Tyler also directly contested 

the Original Trust itself. The relevant question is therefore 

whether the Trustors intended to limit the forfeiture that would 

result from such a contest only to the share of assets directly 

specified in the Original Trust instrument. Nothing in the 

language of the No Contest Clause supports that conclusion.

Moreover, Tyler’s contest of the Original Trust directly

affected the assets that she now argues should be exempt from 

forfeiture. As we explained in Key v. Tyler II, Tyler’s defense of 

the 2007 Amendment, had it been successful, would have had the 

effect of revoking paragraph C of Article Four (governing the 

Survivor’s Trust), “which the 2007 Amendment purported to

replace.” (Key v. Tyler II, supra, 34 Cal.App.5th at p. 524.) The 

2007 Amendment would have replaced that portion of the 

Survivor’s Trust with detailed instructions for the distribution of 
17

the balance of the Survivor’s Trust, limiting Key’s share to 

$1 million at most.

In contrast, the 2007 Amendment specified that Tyler 

would receive 65 percent of the Surviving Trustor’s interest in the 

Trustors’ business entities and 50 percent of the remaining 

assets, and Potz would receive 35 percent of the business entities 

and the other 50 percent of the remaining assets.5 Because the 

Trustors’ business assets that produce revenue had all been 

allocated to the Survivor’s Trust, this provision had the effect of 

depriving Key of any share of the business assets (as well as any 

share of the remaining assets allocated to the Survivor’s Trust). 

(See Key v. Tyler II, supra, 34 Cal.App.5th at p. 512.) In short, 

the 2007 Amendment cut off the flow of business assets that Key 

would otherwise have inherited through the Residual Trust 

before they ever reached the Residual Trust, making the onethird share of the Residual Trust that the 2003 Amendment 

allocated to Key irrelevant with respect to those assets.

This was hardly a minor change. Nor was it limited to 

personal property. Rather, it affected the entirety of assets 

distributed through the Survivor’s Trust, amounting to an attack 

on both the Original Trust and the beneficiaries’ shares specified 

in the 2003 Amendment. Indeed, Tyler concedes that the 2007 

Amendment “would have altered the distribution schemes for 

5 As mentioned, the 2007 Amendment instructed that the 

shares of the Survivor’s Trust allocated to Tyler and Potz were to 

be distributed to each through the Residual Trust. In contrast, 

the effect of the 2007 Amendment was to preclude Key from 

inheriting any portion of the Survivor’s Trust through her 

interest in the Residual Trust.
18

both the Original Trust and the 2003 Amendment, which would 

have reduced Key’s share in the survival trust to $1 million.”

This significant change amounted to the type of contest 

that the Trustors clearly intended to trigger the full scope of the 

forfeitures identified in the No Contest Clause. (Cf. Burch, 

supra, 7 Cal.4th at pp. 260–261 [proposed litigation would have 

frustrated the trustor’s intent and amounted to a contest because 

it would have nullified or thwarted the “provisions in the trust 

instrument that provide for the allocation of all assets placed in 

the trust estate to the various subsidiary trusts”]; Estate of 

Pittman (1998) 63 Cal.App.4th 290, 301 [the evident purpose of a 

broad no contest clause was “to expansively prohibit any attempt 

to set aside any provision of the trust”].)

c. The scope of the forfeiture that the 

Trustors intended is not limited by law

Having concluded that the language of the No Contest 

Clause supports forfeiture of all Tyler’s assets distributed 

through the Trust, including the Residual Trust, the only 

remaining issue is whether the law somehow limits the effect 

that we must otherwise give to the Trustors’ intent as expressed 

in that language. It does not.

The Probate Code carefully circumscribes the types of 

contests that can support the enforcement of a no contest clause. 

Under section 21311, a no contest clause may be enforced only

against three types of contests, including, as relevant here, a 

“direct contest that is brought without probable cause.” (§ 21311, 

subd. (a)(1).) As our Supreme Court has explained, this careful 

definition is a result of the Legislature’s attempt to simplify and 

eliminate uncertainty in the application of the law on no contest 

clauses. (Donkin v. Donkin, supra, 58 Cal.4th at pp. 424–426.) 
19

The current legislative scheme represents a balance between 

competing policy interests. On the one hand, no contest clauses 

help in respecting a transferor’s wishes and reducing conflict 

among beneficiaries. On the other hand, they can restrict access 

to the courts to protect important rights and, if wrongly applied, 

can result in a forfeiture that the transferor did not intend. 

(Ibid.)

Careful adherence to the Legislature’s definition of the 

types of contests that can support the application of no contest 

clauses is therefore important to respect the Legislature’s balance 

of policy interests, including the desire to avoid unwarranted 

forfeitures. (See Aviles v. Swearingen (2017) 16 Cal.App.5th 485, 

491–492 (Aviles).) This includes a strict application of the 

Legislature’s definition of a “protected instrument,” which 

includes only two categories of documents: (1) the “instrument 

that contains the no contest clause,” and (2) an instrument “that 

is in existence on the date that the instrument containing the no 

contest clause is executed and is expressly identified in the no 

contest clause.” (§ 21310, subd. (e).) This means that, if a party 

contests an instrument that does not belong to one of these 

categories, a no contest clause will not apply, even if it appears 

that the transferors intended that it would. Giving effect to the 

transferors’ intent in that situation would violate the directive in 

section 21314 that “[t]his part applies notwithstanding a contrary 

provision in the instrument.” (See Aviles, at p. 492.)

However, unlike the legislative restrictions on the types of 

contests that can support application of a no contest clause, if a 

prohibited contest does occur the governing statutes do not place 

any restriction on the scope of the forfeiture that may result. In 

the event of a direct contest brought without probable cause, the 
20

Legislature has already balanced the various policy interests to 

permit a forfeiture. The governing statutes do not place any 

further limit on the scope of the forfeiture that the transferors 

are permitted to impose.

Tyler does not cite any authority to the contrary. Tyler 

relies on Aviles, supra, 16 Cal.App.5th 485, but that case is 

inapposite. In Aviles, unlike here, there was no direct contest of a 

protected instrument. In that case, a beneficiary challenged only 

an unprotected trust amendment on the ground that it was 

procured through undue influence.

6 (Id. at p. 489.) Because that 

amendment did not itself contain a no contest provision, the court 

concluded that it was not a protected instrument and held that 

no direct contest had occurred. (Id. at pp. 491–492.) Thus, the 

court’s holding was simply an application of the statutes 

discussed above that narrow the types of contests that will 

support application of a no contest clause. The holding did not 

address the pertinent issue here, which is the permissible scope

of forfeiture when a direct contest has occurred.

Other cases that Tyler cites similarly concern the issue of 

whether a no contest clause in one instrument can apply to the

contest of a separate, unprotected instrument. Those cases do

not address the permissible scope of forfeiture from an actual

direct contest of a protected instrument. (See Estate of Rossi 

(2006) 138 Cal.App.4th 1325, 1329, 1338 [proposed challenge to 

an unprotected trust amendment on the ground of undue 

influence]; Perrin v. Lee (2008) 164 Cal.App.4th 1239, 1247 

6 This case would be similar to Aviles if, for example, Tyler 

had directly contested only the 2003 Amendment. But her attack 

on the Trust was not so limited, as discussed above.
21

[proposed challenge to several unprotected trust amendments]; 

Cory v. Toscano (2009) 174 Cal.App.4th 1039, 1044–1045 

[challenge to the validity of interlineations on a trust document, 

which the court held constituted a separate, unprotected 

amendment].)

Tyler also cites the language of section 21311, which 

provides in part that a no contest clause “shall only be enforced 

against . . . [¶] [a] direct contest that is brought without probable 

cause.” (§ 21311, subd. (a)(1), italics added.) Tyler argues that 

this language means that a no contest clause may only be 

enforced “against” the particular instrument that was directly 

contested.

The language of the statute does not support that 

interpretation. The statute identifies the types of contests that a 

no contest clause may be enforced against, not the types of 

instruments to which a forfeiture may be applied. This is 

consistent with the Legislature’s purpose to clearly designate the 

categories of contests that may support the application of a no 

contest clause. (See Donkin v. Donkin, supra, 58 Cal.4th at pp. 

424–426.) The statute does not address the scope of forfeiture 

that is permissible once a contest that falls within one of these 

categories has occurred.

Thus, Tyler does not identify any legislative limitation on 

the scope of forfeiture that trustors may impose as a penalty for a 

direct contest brought without probable cause. Tyler’s position 

ultimately depends upon such a limitation. Tyler argues, in 

essence, that her direct contest of the Original Trust may result 

only in the forfeiture of her share of assets that is directly 

specified by the particular provisions that she challenged. There 
22

is no support for that argument in the language of the No Contest 

Clause or in the law, and we therefore reject it.

In light of this analysis, we reverse. Key requests that, in 

doing so, we also conclude that Tyler lacked probable cause for 

her direct contest of the Trust. However, we cannot decide the 

issue of probable cause as a matter of law on this appeal. As we 

explained in Key v. Tyler II, the “legal standard for invalidating 

an instrument based upon undue influence and the standard for 

finding a lack of probable cause to believe the instrument was 

valid are different.” (Key v. Tyler II, supra, 34 Cal.App.5th at p. 

539.) The probate court has not yet considered whether the facts 

show that Tyler lacked probable cause. We therefore remand for 

the probate court to make such findings.
23

DISPOSITION

The probate court’s order denying Key’s petition to enforce 

the No Contest Clause is reversed. The matter is remanded for 

further proceedings on that petition, including findings as to 

whether Tyler lacked probable cause for her direct contest of the 

Trust. Key is entitled to her costs on appeal.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.