UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GEORGE F. KLECAN, 

 Plaintiff Counter 

 Defendant - Appellant, 

v. 

JANET SANTILLANES, as Trustee of the 

Eugene E. Klecan and Jane F. Klecan 

Revocable Trust dated March 11, 1999 as 

Amended, 

 Defendant Counter 

 Plaintiff - Appellee. 

No. 15-2171 

(D.C. No. 1:15-CV-00016-WJ-KBM) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges. 

_________________________________ 

George F. Klecan filed this action against his sister, Janet Santillanes, who is 

the Trustee of the Eugene E. Klecan and Jane F. Klecan Revocable Trust (“Trust”), a 

conventional gift trust created by their parents. Mr. Klecan asserted breach-of-trust 

claims and sought declarative and injunctive relief and damages. After the Trustee 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 25, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

moved for partial summary judgment, the court held that Mr. Klecan had, by his 

conduct, absolutely forfeited his one-eighth share of the Trust property under the 

express terms of the Trust. The court further held that its ruling on the forfeiture 

issue necessarily dispensed with Mr. Klecan’s other claims, which the court 

dismissed. The court then entered judgment disposing of the case in its entirety. 

Mr. Klecan appeals the district court’s judgment. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm. 

I. Background 

 Mr. Klecan’s parents, Eugene and Jane Klecan (“Grantors”), created the Trust 

in 1999 under New Mexico law. Grantors designated Ms. Santillanes to serve as 

Trustee of the Trust after their deaths. The Trustee, Mr. Klecan, and their six 

siblings are the named beneficiaries of the Trust, and each is entitled to receive a 

one-eighth share of the Trust property. The primary asset in the Trust was an 

apartment complex in Fort Worth, Texas, known as La Plaza Apartments, where 

Mr. Klecan lived and worked as the apartment manager for 30 years. 

The Trust originally provided in § 8.1 for the formation, upon the death or 

incapacity of the Grantors, of a Trust Advisory Committee (“TAC”) made up of all 

eight beneficiaries. The Trust granted the TAC the power to direct the Trustee 

regarding the sale of real property held in the Trust, with one exception: if 

Mr. Klecan was residing in and managing La Plaza Apartments, he had the right to 

veto any sale of the apartment complex for five years after the death of both 

Grantors. In 2005, however, Grantors amended the Trust (the “Second 
3 

Amendment”), limiting the TAC to three members: the Trustee and two of 

Mr. Klecan’s other siblings. The Second Amendment also deleted the original 

provision granting Mr. Klecan a five-year veto power over the sale of La Plaza 

Apartments. 

The Trust includes what is commonly referred to as a no-contest provision. 

Section 14.5 (“Contestability Clause”) provides as follows, in relevant part: 

14.5 Contestability 

 A. The beneficial provisions of this trust agreement . . . are 

intended to be in lieu of any other rights, claims, or interests of any nature, 

whether statutory or otherwise, except bonafide predeath debts, which any 

beneficiary of this trust may have against or in . . . the properties in this 

trust. Accordingly, if any beneficiary of this trust . . . asserts any claim 

whatsoever (except bonafide predeath debts), statutory election, or other 

right or interest against or in . . . any properties of this trust, other than 

pursuant to the express terms hereof . . ., directly or indirectly contests, 

disputes, or calls into question, before any tribunal, the validity of this 

instrument . . ., then such beneficiary shall thereby absolutely forfeit any 

beneficial interests which such beneficiary might otherwise have under this 

instrument . . . and the interests of the other beneficiaries hereunder shall 

thereupon be appropriately and proportionately increased. In addition, all 

of the provisions of this instrument, to the extent that they confer any 

benefits, powers, or rights upon such claiming, electing or contesting 

beneficiary, shall thereupon become absolutely void and revoked . . . . 

B. Subparagraph A shall not apply to any beneficiary who 

(i) either contests this trust agreement . . . or institutes other proceedings 

relating to a governing instrument . . . if probable cause exists for instituting 

proceedings, (ii) participates solely as a witness in any proceeding 

involving a governing instrument . . . or (iii) appears in any capacity in any 

proceeding solely for the construction of a governing instrument. 

Aplt. App., Vol. I at 48. 

The Trust was revocable in its entirety until Eugene Klecan died in February 

2007. After Jane Klecan died in 2013, the TAC began efforts to sell La Plaza 
4 

Apartments. The TAC hired the Trustee’s husband, Abraham Santillanes, to oversee 

repairs and improvements at the apartment complex. The Grantors had previously 

hired Mr. Santillanes to do similar work at other apartment properties. Because the 

TAC believed that Mr. Klecan was interfering with the work needed to prepare 

La Plaza Apartments to be sold, the Trustee terminated his position as apartment 

manager and asked him to vacate the manager’s apartment and move to another 

apartment in the complex. Mr. Klecan refused to move and, according to the Trustee, 

interfered with the business of running the apartment complex. The Trustee caused 

La Plaza Apartment Partnership (“Partnership”), an entity created to own La Plaza 

Apartments, see id. at 143, to file an eviction proceeding against Mr. Klecan in Texas 

state court (“Eviction Action”). 

Mr. Klecan filed an answer in the Eviction Action challenging the 

Partnership’s standing to bring the action on the ground that the Second Amendment 

to the Trust “had no legal effect because it sought to amend an irrevocable Trust B 

controlling the La Plaza Apartments.” Id., Vol. III at 281. He maintained that, 

“[b]ecause the Second Amendment had no legal effect, the only way to authorize 

[his] eviction [was] a majority vote of the eight beneficiaries, including [Mr. Klecan], 

constituting the ‘Trust Advisory Committee’ in Section 8.1 of the Trust.” Id. Thus, 

Mr. Klecan contended in the Eviction Action that the Second Amendment was 

invalid and that the original § 8.1 of the Trust, which provided for his five-year veto 

power over the sale of La Plaza Apartments and his membership in the TAC, 

remained in effect. 
5 

The Partnership prevailed in the Eviction Action. After Mr. Klecan appealed 

that ruling, the parties settled the dispute when Mr. Klecan agreed to move into 

another apartment at La Plaza Apartments. 

Following the sale of La Plaza Apartments for $2.9 million in 2014, the 

Trustee prepared a proposed schedule of distribution for each beneficiary, setting 

forth his or her one-eighth share of the Trust property minus any advances the 

beneficiary had received. All beneficiaries but Mr. Klecan approved the distribution 

schedules and signed releases of claims against the Trust. Upon signing a release, the 

Trustee distributed to each beneficiary a one-eighth share of the proceeds from the 

sale of La Plaza Apartments less an amount held in reserve for legal and other 

expenses related to the claims that Mr. Klecan had asserted and threatened to assert. 

At the time of these distributions, the Trustee believed that, by his conduct, 

Mr. Klecan had forfeited any beneficial right or interest in the Trust under the 

Contestability Clause. The Trustee informed Mr. Klecan of her contention regarding 

his forfeiture, but nonetheless provided him with a proposed distribution deducting 

$70,000 in advances he had received on his one-eighth share, plus an additional 

deduction for costs that Mr. Klecan had caused the Trust to incur, including the cost 

of the Eviction Action. Mr. Klecan objected to this proposed distribution and refused 

to sign a release of claims to obtain his distribution. 

 Mr. Klecan instead filed this action against the Trustee, alleging that she had 

breached her duties of good faith and loyalty by threatening his disinheritance; 

refusing to unconditionally distribute his one-eighth share of the Trust property; 
6 

distributing Trust shares to other beneficiaries but not to him; threatening him with 

legal action; and engaging in self-dealing with other family members. Mr. Klecan 

asked the district court to remove Ms. Santillanes as Trustee or, alternatively, to 

order the Trustee to distribute his share of the Trust property, provide an accounting, 

and stop holding Trust property in reserve for a legal defense fund. He also sought a 

declaration that he had not triggered the Trust’s Contestability Clause. The Trustee 

filed a counterclaim asking the district court to declare that Mr. Klecan had forfeited 

his interest in the Trust, or alternatively, to declare the amount that the Trustee 

should distribute to Mr. Klecan under the terms of the Trust. 

 The Trustee moved for partial summary judgment, arguing that Mr. Klecan 

had forfeited his share of the Trust assets under the terms of the Contestability Clause 

by disputing the validity of the Trust or asserting a claim against properties of the 

Trust. The district court held, based on the undisputed facts, that Mr. Klecan had 

forfeited his inheritance under the Trust. It construed the Contestability Clause as 

providing that a beneficiary’s one-eighth share of the Trust property is in lieu of any 

other claim, right, or interest of any nature that a beneficiary might have against or in 

the Trust property. The court reasoned that the Trust created an either/or option for a 

beneficiary: he could accept his allotted one-eighth share and give up any and all 

other claims, rights, or interests in the Trust property, or he could give up his 

one-eighth share and pursue other claims. But a beneficiary “cannot have it both 

ways.” Aplt. App., Vol. III at 376. 
7 

In holding that Mr. Klecan had forfeited his share of the Trust property, the 

district court identified the following actions as triggering the Contestability Clause: 

(1) Mr. Klecan challenged the validity of the Second Amendment to the Trust in the 

Eviction Action; (2) he alleged willful misconduct, negligence, and breach of trust 

against the Trustee in this action, seeking damages of at least $453,000, which is 

more than his one-eighth share of the Trust; (3) he asserted other rights outside the 

express terms of the Trust, such as a right to control or veto the sale of La Plaza 

Apartments, essentially disputing the validity of the Second Amendment; and (4) he 

contested the Grantors’ selection of Ms. Santillanes as the Trustee. 

Having decided the forfeiture issue in the Trustee’s favor and granted her 

summary judgment on two of Mr. Klecan’s counts, the court dismissed the remainder 

of his claims with prejudice. It then entered a final judgment disposing of the case in 

its entirety. 

II. Discussion 

 “We review the district court’s grant of summary judgment de novo, applying 

the same standard employed by the district court.” Wetherill v. Bank IV Kansas, 

N.A., 145 F.3d 1187, 1191 (10th Cir. 1998). Summary judgment is appropriate “if 

the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“[T]o defeat a summary judgment motion, the nonmovant must do more than simply 

show that there is some metaphysical doubt as to the material facts.” Wetherill, 

145 F.3d at 1191 (internal quotation marks omitted). “In applying this standard, we 
8 

must examine the factual record and reasonable inferences therefrom in the light 

most favorable to the non-moving/opposing party. If no dispute exists concerning a 

genuine issue of material fact, we then determine whether the district court correctly 

applied the substantive law.” Id. (citation and internal quotation marks omitted). 

 A. No-Contest Provisions Under New Mexico Law 

 The New Mexico Supreme Court has stated that no-contest clauses “serve to 

protect estates from costly and time-consuming litigation and they tend to minimize 

family bickering over the competence and capacity of testators, and the various 

amounts bequeathed.” Seymour v. Davis (In re Seymour), 600 P.2d 274, 278 (N.M. 

1979).

1

 No-contest provisions “are valid and enforceable in New Mexico, but they 

are not effective to disinherit a beneficiary who has contested a will in good faith and 

with probable cause to believe that the will was invalid.” Id. 

Under New Mexico law, no-contest clauses are generally construed narrowly 

and strictly against forfeiture. See Redman-Tafoya v. Armijo, 126 P.3d 1200, 1211 

(N.M. Ct. App. 2005). But “the paramount rule” is still to ascertain and effectuate 

the intent of the Grantor. See id. at 1211. “Whether there has been a ‘contest’ within 

the meaning of a particular no-contest clause depends upon the circumstances of the 

particular case and the language used.” Id. at 1212 (internal quotation marks and 

alteration omitted). 

 1

 The parties do not dispute that New Mexico case law concerning the 

construction of no-contest clauses in wills also applies to no-contest clauses in trusts. 
9 

Under the no-contest clause at issue in Redman-Tafoya, a beneficiary forfeited 

her share of the estate by contesting or attacking the will or any of its provisions “in 

any manner.” Id. at 1202. The trial court broadly construed this provision, holding 

that a beneficiary’s actions, including her refusal to cooperate with the personal 

representative and certain claims that she filed in litigation, constituted attacks on the 

validity of the will. See id. at 1205. In reversing these findings on appeal, the 

appellate court set forth a “default construction for relatively general no-contest 

clause language” like that found in the will in Redman-Tafoya. Id. at 1215. It said 

that such clauses 

should be read as penalizing only beneficiaries who, in the absence of good 

faith and probable cause, seek through a legal proceeding to invalidate a 

will or to invalidate a provision of a will on grounds such as lack of 

testamentary capacity, fraud, undue influence, improper execution, forgery, 

or subsequent revocation by later document, or on grounds that effectively 

nullify a material provision in the will. 

Id. at 1212. The court adopted this default construction to promote predictability 

because “[l]egal proceedings to invalidate a will or to invalidate or nullify a 

provision in a will are more easily recognizable than other conduct or actions that 

might be perceived as thwarting some less clear or unexpressed intent of the 

testator.” Id. at 1213. But the court stressed that “[a] testator is still free to disinherit 

beneficiaries on any ground that does not violate public policy and that clearly and 

specifically expresses what type of legal proceedings, or what type of other conduct 

and actions, the testator intends to discourage through the threat of disinheritance.” 

Id. at 1215. 
10 

Applying its default construction of the no-contest clause at issue in 

Redman-Tafoya, the court held that none of the beneficiary’s conduct could be 

considered a contest of or an attack on the will. Id. at 1214. It noted that she did not 

“outright seek to invalidate the Will or to invalidate any provision of the Will.” Id. at 

1211. More specifically, her lack of cooperation was not an attack on the will. 

See id. at 1214. Nor did the claims she asserted in litigation trigger the no-contest 

clause. She had filed a counterclaim in a quiet-title action seeking to disinherit other 

beneficiaries, and she had attempted in the probate proceeding to remove the personal 

representative. The court held that these claims were authorized by the will, rather 

than an attack on the validity of any provision of the will. See id.

Against this legal back-drop, Mr. Klecan argues that the district court erred in 

holding that, by his conduct, he forfeited his share of the Trust under the 

Contestability Clause. He asserts that he did not trigger that clause by defending the 

Eviction Action or by bringing this action. He further argues that the district court 

ignored subparagraph B of the Contestability Clause and New Mexico law, which 

preclude a forfeiture if the beneficiary acted in good faith and with probable cause. 

Mr. Klecan asks us to reverse the district court’s forfeiture ruling and remand with 

instructions to determine his rights under the Trust and his claims against the Trustee. 

B. By Asserting the Invalidity of the Second Amendment in the 

Eviction Action, Mr. Klecan Forfeited his One-Eighth Share of the 

Trust Property

The Contestability Clause provides that a beneficiary “shall . . . absolutely 

forfeit any beneficial interests which such beneficiary might otherwise have under 
11 

this instrument” if he “directly or indirectly contests, disputes, or calls into question, 

before any tribunal, the validity of this instrument.” Aplt. App., Vol. I at 48. 

Mr. Klecan advances several theories why he did not trigger the Contestability 

Clause when he asserted in the Eviction Action that the Second Amendment to the 

Trust was invalid. 

 1. Mr. Klecan did not Institute Legal Proceedings 

Mr. Klecan maintains that, according to New Mexico law and under the 

specific language of the Contestability Clause, a no-contest provision is only

triggered when the beneficiary institutes the legal proceedings in which he contests 

the validity of a trust. Because he was the defendant in the Eviction Action, he 

therefore contends that he did not forfeit his inheritance by asserting in that action 

that the Second Amendment was invalid. 

Mr. Klecan first points to the holding in Redman-Tafoya that the beneficiary’s 

counterclaim in a quiet-title action, by which she sought to disinherit other 

beneficiaries, was not a “contest” under the no-contest clause in a will. See 126 P.3d 

at 1214. We disagree that the holding in Redman-Tafoya supports the proposition 

that Mr. Klecan asserts. The court held that the beneficiary’s disinheritance claim 

did not trigger the no-contest clause because the claim was authorized under the will 

and did not attack the validity of the will. See id. The court also emphasized that the 

disinheritance claim “never approached adjudication” because the beneficiary did not 

ultimately pursue that claim. Id. (“We hold that Tafoya’s short-lived and untested 

disinheritance claim . . . do[es] not constitute [a] contest[].”). Thus, the court did not 
12 

conclude, as Mr. Klecan asserts, that the beneficiary had not triggered the no-contest 

clause because she was the counterclaimant, rather than the plaintiff, in the quiet-title 

action. 

Here, Mr. Klecan admittedly did attack the validity of a provision of the Trust 

in the Eviction Action by arguing that the Second Amendment was invalid because it 

was executed after the Trust became irrevocable. Thus, unlike the petitioner in 

Redman-Tafoya, and consistent with the language of the Contestability Clause, he 

contested, disputed, and called into question the validity of an amendment to the 

Trust before a tribunal. And Mr. Klecan has not argued or shown that his contention 

was “untested” in the Eviction Action. 

Mr. Klecan alternatively argues that the language of the Contestability Clause 

limits the type of “contest” that triggers a forfeiture to affirmative rather than 

defensive actions by a beneficiary. He points to subparagraph B of the clause, which 

provides an exception to the forfeiture language in subparagraph A under certain 

circumstances. Subparagraph B provides, in relevant part, that “[s]ubparagraph A 

shall not apply to any beneficiary who (i) either contests this trust agreement . . . or 

institutes other proceedings relating to a governing instrument . . . if probable cause 

exists for instituting proceedings.” Aplt. App. Vol. I at 48 (emphasis added). Based 

on subparagraph B’s reference to “instituting proceedings,” Mr. Klecan argues that a 

forfeiture can only occur under subparagraph A if the beneficiary instituted 

proceedings to contest the validity of the Trust. 
13 

This contention ignores the language of subparagraph A, which is not so 

limited. It provides that a beneficiary forfeits his interest in the Trust if he “directly 

or indirectly contests, disputes, or calls into question, before any tribunal, the validity 

of this instrument.” Aplt. App., Vol. I at 48. Although the Grantors here chose to 

require that a contest be advanced “directly or indirectly . . . before any tribunal,” 

they did not specify that, for forfeiture to result, the contesting beneficiary must be 

the party who filed the action. In Redman-Tafoya, the court stated that “limited 

proscriptions in a no-contest clause specifically describing conduct intended by the 

testator to trigger disinheritance can be enforced.” 126 P.3d at 1213. We are not 

persuaded that the language in subparagraph B has the limiting effect that Mr. Klecan 

asserts on the forfeiture language Grantors chose to use in subparagraph A. 

2. Mr. Klecan did not Seek to Expand his One-Eighth Share of 

the Trust Property in the Eviction Action 

Mr. Klecan next claims that his defense in the Eviction Action did not trigger 

the Contestability Clause because he did not seek to expand his one-eighth share of 

the Trust property in that action. He maintains that the principal issues in that 

action—whether he could avoid eviction and what rent he owed—were “largely 

peripheral to the trust.” Aplt. Opening Br. at 14. But as Mr. Klecan acknowledges, 

see id. at 13, the Contestability Clause is triggered by asserting certain claims against 

the Trust property or by contesting the validity of the Trust instrument. His attempt 

to invalidate the Second Amendment triggered the latter prohibition regardless of 

whether he asserted a claim to expand his one-eighth share of the Trust property. 
14 

3. Mr. Klecan did not Contest the Validity of the Original Trust 

Instrument 

Mr. Klecan also contends that, because the Contestability Clause refers only to 

challenges to the validity of “this instrument,” i.e., the Trust, and does not mention 

later amendments, he did not trigger the clause by contesting the validity of the 

Second Amendment in the Eviction Action. The Trustee argues, and Mr. Klecan 

admits, that he did not make this argument in the district court. 

“An issue is preserved for appeal if a party alerts the district court to the issue 

and seeks a ruling.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 

1150 (10th Cir. 2012) (internal quotation marks omitted). We will reverse based on a 

new issue raised for the first time on appeal only if the appellant satisfies the 

plain-error standard of review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 

1130 (10th Cir. 2011). In a civil case, this burden is “extraordinary” and “nearly 

insurmountable.” Id.

Mr. Klecan fails to acknowledge the applicability of this review standard. In 

his reply brief he argues that the Trustee has not shown any prejudice from his failure 

to raise this contention in the district court; he urges us not to uphold the district 

court’s ruling on the basis that he forfeited an argument; and he responds to the 

Trustee’s argument why the Contestability Clause applies to amendments to the 

Trust, disputing her reliance on a New Mexico statute and citing California case law. 

Because Mr. Klecan fails to show “the presence of (1) error, (2) that is plain, which 

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or 
15 

public reputation of judicial proceedings” id. at 1128, we do not reach this 

contention, see Somerlott, 686 F.3d at 1151-52 (declining to reach argument where 

appellant did not carry her burden to demonstrate plain error). 

4. Mr. Klecan’s Contention that he Challenged the Validity of 

the Second Amendment in Good Faith and with Probable 

Cause 

 

Lastly, Mr. Klecan argues that the district court ignored the probable-cause 

exception to forfeiture in subparagraph B of the Contestability Clause, as well as the 

good faith/probable-cause exception under New Mexico law, see Seymour, 600 P.2d 

at 278 (holding no-contest provisions “are not effective to disinherit a beneficiary 

who has contested a will in good faith and with probable cause to believe that the will 

was invalid”); see also N.M. Stat. Ann. § 45-2-517 (codifying probable-cause 

exception to no-contest provisions). Mr. Klecan argued in the district court that, by 

relying on the advice of his counsel, he acted in good faith and with probable cause 

in challenging the validity of the Second Amendment in the Eviction Action. The 

district court noted his asserted reliance on counsel’s advice, but concluded that he 

was nonetheless bound by his counsel’s challenge to the Second Amendment. 

Mr. Klecan contends that the district court failed to address the merits of his claim of 

good faith and probable cause. 

Mr. Klecan argues these issues raise questions of fact for the jury, citing 

Hamel v. Hamel, 299 P.3d 278, 290 (Kan. 2013) (“Whether probable cause exists is a 

question of fact.”); see also In re Estate of Gibbons, 451 S.W.3d 115, 122 (Tex. App. 

2014) (“The trial evidence raised genuine fact issues regarding [good faith and 
16 

probable cause], and the trial court did not err in submitting these issues to the 

jury.”); Haley v. Pickelsimer, 134 S.E.2d 697, 701 (N.C. 1964) (noting lack of factual 

determination whether a will contest was instituted in good faith and with probable 

cause). We assume for purposes of his appeal argument that New Mexico courts 

would likewise treat good faith and probable cause as questions of fact. 

Probable cause exists when “there was evidence that would lead a reasonable 

person, properly informed and advised, to conclude that there was a substantial 

likelihood that the challenge would be successful.” Restatement (Third) of Property 

(Wills & Donative Transfers) (“Restatement”) § 8.5 cmt. c. To avoid summary 

judgment, Mr. Klecan was required to come forward with evidence demonstrating a 

genuine dispute whether he challenged the validity of the Second Amendment in the 

Eviction Action in good faith and with probable cause. 

Mr. Klecan asserts that he has always acted in good faith and with probable 

cause. Regarding his assertion in the Eviction Action that the Second Amendment 

was invalid because it was executed after the Trust became irrevocable, he maintains 

that he relied on his counsel’s advice and argues that he cannot be faulted for any 

legal error. See Aplt. App., Vol. III at 331 (disclaiming his counsel’s legal argument, 

while asserting that he was defending himself from an unlawful eviction and was 

strictly following his counsel’s advice). Mr. Klecan fails, however, to point to any 

evidence that would lead a reasonable person, who was properly informed and 

advised, to conclude that his challenge to the Second Amendment on that basis would 

be successful. 
17 

Mr. Klecan further avers that his counsel “may have had reason . . . to believe 

that the Second Amendment to the Trust might be invalid possibly due to [his] father 

Eugene Klecan having been diagnosed with Dementia and Alzheimer’s prior to 

signing it.” Id. at 352. He does not say how “may,” “might,” and “possibly” add up 

to probable cause. Mr. Klecan’s noncommittal statement fails to demonstrate that 

either he or his counsel could have contested the Second Amendment in good faith 

and with probable cause based on his father’s incapacity. Nor is there any indication 

that he ever asserted this basis for challenging the validity of the Second Amendment 

in the Eviction Action. 

III. Conclusion 

 We agree with the district court’s declaration, based on an absence of disputed 

fact issues, that Mr. Klecan forfeited his one-eighth share of the Trust property by 

contesting the validity of the Second Amendment in the Eviction Action. We 

therefore affirm the court’s grant of partial summary judgment to the Trustee without 

addressing the Trustee’s other forfeiture contentions.2

 Because Mr. Klecan does not 

 

 2

 In addition to Mr. Klecan contesting the validity of the Second Amendment 

in the Eviction Action, the Trustee argues that his other actions, including the claims 

he raised in this action, also triggered a forfeiture under the Contestability Clause. 

We need not and do not reach these contentions. 
18 

challenge the district court’s dismissal of his remaining claims based on its forfeiture 

ruling, we affirm the district court’s judgment disposing of the entire case. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge