Key Takeaways
- Anti-SLAPP motions are often used to protect individuals from lawsuits that may be used to suppress free speech by striking lawsuits that may target public voice.
- Strategic Litigation Against Public Participation (SLAPP) is a tool used to suppress free speech by initiating lawsuits against individuals with fewer resources.
- In probate matters, anti-SLAPP motions may be abused to attempt to strike down valid usage of a no-contest clause, which may waste time and money in the probate process.
- Anti-SLAPP laws can be difficult to understand, so it’s important to consult a skilled probate litigation attorney for guidance on how to address these cases.
Introduction
Anti-SLAPP statutes, such as those in California, exist to protect individuals from facing lawsuits intended to suppress free speech. The most significant goal of these lawsuits is to protect the free speech of litigants by striking legal complaints that are likely invalid, raised in bad faith, and often the result of intimidation.
Bad actors may use litigation to suppress speech, filing a lawsuit under the guise of defamation, when the true intention is to drain the time and resources of the litigant to dissuade them from continuing to pursue a legitimate claim. These motions can be used in both civil matters and probate contexts.
In probate, anti-SLAPP laws have most often been invoked in the case of no-contest clauses. However, the abuse of anti-SLAPP motions can be used to suppress valid no-contest clauses and waste time and money during the estate administration process. Understanding how these motions can be abused and how to best address these concerns is valuable for moving forward in the probate process while preserving the interests of the estate.
Understanding SLAPP and Anti-SLAPP Statutes
SLAPP and anti-SLAPP statutes are two important countering legal concepts. It’s important to understand why each is important and how they relate to each other.
Definition and Purpose of SLAPP
SLAPP stands for “Strategic Lawsuits Against Public Participation”. These, generally meritless, lawsuits are often used by private interests as a tool to suppress public comment and participation in lawsuits, often as a way to silence critics. The “strategic” element in this concept comes from the idea that litigation is often used as a tool to intimidate litigants or make it too inconvenient or costly to pursue a case. These types of lawsuits paved the way for the need for anti-SLAPP laws, designed to protect free speech from strategic lawsuits with the goal of silencing critics.
History and Development of Anti-SLAPP Laws
Anti-SLAPP laws were first introduced in the 1990s in most states. California passed its first anti-SLAPP legislation in 1992, which occurred as a result of a rising concern regarding lawsuits limiting free speech. California’s anti-SLAPP statute is established by the California Code of Civil Procedure section 425.16. SLAPP lawsuits were often used by larger companies to make it too expensive for plaintiffs with fewer resources to follow through with their case.
Anti-SLAPP Laws are designed to protect the free speech of common citizens by allowing for a special motion to strike a complaint from a case and prevent meritless claims. Anti-SLAPP laws are intended to strike these complaints to avoid the unnecessary waste of time and money associated with “strategic” litigation, a tool used to dissuade litigants from pursuing an otherwise reasonable case.
Jurisdictional Differences in Anti-SLAPP Statutes
Anti-SLAPP laws are typically enacted at the state level, so any jurisdictional differences are most likely to occur across state lines. Anti-SLAPP statutes have been adopted in 38 states and the District of Columbia, including both California and Texas.
However, these statutes may differ depending on each state’s drafting of these laws, offering varying levels of protection. States offer different degrees of protection for speech as determined by the statute and the nature of protection it offers individuals as speakers. It’s important to consult an experienced attorney to understand what types of speech an anti-SLAPP motion can protect and when it can be used.
Anti-SLAPP in Probate and Civil Litigation
Anti-SLAPP laws are applicable in both probate and civil litigation contexts and may be relevant in the following matters.
Application in Probate Matters
One of the most common applications of anti-SLAPP laws in probate matters involves no-contest clauses and probate court petitions. A no-contest clause is a provision added to a will to dissuade interested parties from contesting a will unnecessarily. No-contest clauses are used to dissuade unjust contests by providing consequences for a failed contest, such as losing their right to an inheritance in the will.
These contests can only be brought forward if an individual has probable cause to believe that a contest is justified. In other words, an interested party cannot contest a will simply because they disagree with the inheritance; instead, they must believe in some capacity that the will was fraudulently altered or is for some reason invalid.
However, these clauses may be struck down in court as unenforceable. In California, for example, the court will not enforce a no-contest clause if the contestant had probable cause to file the contest, even if the contest ultimately fails. This reduces the risk of a potential beneficiary choosing not to contest a will out of concern for losing their inheritance.
Anti-SLAPP motions have been most relevant in cases where an individual attempts to contest a will or trust. In instances where a trustee or executor has attempted to enforce an established no-contest clause, beneficiaries have then used anti-SLAPP motions to attempt to strike down these no-contest clauses. These beneficiaries have cited that no contest clauses are an infringement on their free speech to contest the document. This interpretation is only loosely applied to probate, but the language of the statute can be considered relevant, often tying judges’ hands regarding the application of the statute.
Application in Civil Litigation
There are many potential ways that anti-SLAPP laws may impact civil litigation, used to protect an individual’s speech. In these cases, a person being sued often makes a motion to strike a case because it involves speech on a matter of public concern. As a civil code, anti-SLAPP laws are used far more frequently in civil cases than in probate matters.
Common examples of these cases might include:
- A journalist citing an anti-SLAPP statute to protect themselves from defamation lawsuits that lack legal grounds.
- An employee of a company calling out a lack of compliance with legal regulations and filing an anti-SLAPP suit in response to litigation from the company.
- An individual facing a defamation lawsuit for public comment in a community hearing and filing an anti-SLAPP motion against the party waging the lawsuit.
Misuse of Anti-SLAPP Motions
The intentions of anti-SLAPP motions are positive, as the ultimate goal is to defend an individual’s right to free speech by preventing harsh retaliation. However, anti-SLAPP motions also have the ability to be misused, especially when used to attempt to strike down valid legal claims, ultimately delaying the process.
For example, a beneficiary may use an anti-SLAPP motion against a trustee or executor attempting to enforce a valid no-contest clause. The language of California’s anti-SLAPP statute is currently loosely applied to probate cases, so although in theory, the language may be reason to strike down probate petitions, in practice, it can lead to abuse of the statute.
These motions may also be misused in civil matters, such as when they are used to push back against valid defamation. In these instances, an anti-SLAPP motion can delay cases where the litigant is actually liable for wrongdoing.
Impact on Probate Cases
Anti-SLAPP motions have been at the center of multiple probate court cases to date, which have set the stage for how these motions are enforced and applied in the context of probate.
Star v. Ashbrook
In the case, Starr v. Ashbrook, the court heard a contentious estate battle between the children of a 90-year-old Laguna Beach man and his girlfriend and trustee. The trustee attempted to pay costs associated with the back-and-forth series of legal contests out of the estate’s pocket, a move challenged by the man’s children. The trustee responded by filing a special motion to strike (the anti-SLAPP) on the theory that he was being sued for filing and funding litigation, a protected activity.
The trial court ultimately denied the anti-SLAPP motion, and the decision was affirmed by the appellate court panel, which noted that misconduct in the administration of the trust and its assets is not an action in furtherance of a person’s free speech.
“The core injury-producing conduct asserted by [the plaintiff] Jonathan in the surcharge cause of action is the waste and misuse of trust assets; he does not allege that either the petition for instructions or the elder abuse lawsuit in itself produced the injury or gave rise to liability,” wrote the panel. “The injury allegedly suffered is the loss of trust assets and the reduction of the trust corpus, and that injury was produced by the waste and misuse of those assets by the trustee.”
The defeat of the trustee’s anti-SLAPP motion was not surprising to many legal experts. However, the goal of invoking the anti-SLAPP motion during probate is not always to succeed, and instead is to frustrate the other side, waste their time or resources, and delay litigation. When used in this manner, anti-SLAPP motions can be abused to place significant roadblocks in probate and estate administration.
Urick vs. Urick
Urick vs. Urick (2017) also covered the concept of anti-SLAPP laws and their application in no-contest clauses. This case considered whether anti-SLAPP motions can be used to strike down probate petitions seeking to enforce a no-contest clause.
In the case, Allyne Urick executed a trust agreement as a charitable remainder trust, which named her daughter, Dana, son, Willis, and grandson, Trentyn, as beneficiaries of the annuity, with the remaining principal and any accrued interest to be distributed to Phillips Academy of Andover. Later, though, Allyne signed a handwritten note to remove Willis as a beneficiary of the trust before executing an amended trust several months later, which again named Willis as a beneficiary.
When Allyne passed away, Dana became the successor trustee. As trustee, Dana pushed back against the notion that Willis was entitled to an inheritance, stating that the handwritten note was intended to disinherit him, and Allyne was misled when creating the new trust. She then proposed reforming the trust.
Willis and the Phillips Academy, who both stood to lose from the reformation, filed an objection to the trust, and Willis also filed a petition for instructions to the court. Dana filed an anti-SLAPP motion against Willis in response. The trial court ruled in favor of the anti-SLAPP motion and ordered Willis to pay substantial attorney fees, valued at $25,000, to compensate Dana.
Willis filed an appeal to question whether the statute applied and whether it should prevail in the case. Ultimately, the Second District Court of Appeal held that the anti-SLAPP statute is applicable to probate petitions that seek to enforce no-contest clauses, though they did find that Dana may have acted beyond her duties and awarded Willis his costs. However, the panel also acknowledged that the application of anti-SLAPP statutes was “inconsistent” with the intent behind anti-SLAPP to protect free speech, but that their hands were tied in the decision, given the language of the statute.
Takeaways
As a result of Urick and Star, the precedent has been set that probate petitions seeking enforcement of no-contest clauses can be targeted by the anti-SLAPP statute, which may be used to strike valid claims and potentially drain the resources of those interested in the lawsuit. The court has specifically acknowledged that there may be valid reasons to exempt enforcement of no-contest clauses from California’s anti-SLAPP statute, but the current language is clear and determines their decision.
The judges themselves stated that although they may have ruled differently out of principle, the language of the statute is clear. As a result, the court stated that it is up to the legislature to create an exception in future cases. Ultimately, there may be a need for a reconsideration of the language in the current anti-SLAPP statute to rectify its current impacts on probate and estate administration and prevent the statute from being abused.
Given the use of anti-SLAPP suits to strike down the enforcement of no-contest clauses, any executor or trustee will need to fully verify the applicability of a no-contest clause before raising it in order to avoid being struck down. Consulting a trust and estate litigation attorney as early on in the process as possible regarding the strength of your claim will be beneficial for establishing grounds for the contest and preserving the integrity of the estate administration process.
Consequences of Misapplication
The misapplication of anti-SLAPP laws has consequences for the interested parties in a case as well as the respect for the legal process itself, often derailing valid legal processes. Anti-SLAPP laws are meant to deter people from seeking lawsuits against an individual exercising their free speech. However, in probate, these laws have been used to push back against estate representatives petitioning the court to enforce no-contest clauses or other valid probate procedures.
A no-contest clause may be a valid and reasonable motion during probate, especially if a trustee or estate representative has instructions from a trust or will to enforce one. However, misapplying California’s anti-SLAPP statute to probate petitions can prevent them from moving forward smoothly and, as a result, disrupt and delay the estate administration process.
Misapplying anti-SLAPP laws often leads to a significant loss of time and money for the litigants involved. Even if an anti-SLAPP motion is struck down, the party loses the appeal, and a no-enforcement clause or lawsuit survives, it can still be costly and time-consuming to defend against the motion at all.
In cases where anti-SLAPP motions succeed, there may be legal recourse against the initial litigating party, as failed motions may require the litigant to pay the legal fees of the contestant. However, there is little legal recourse or consequence in the opposite direction for a court filing of a frivolous anti-SLAPP motion. The court may only award compensation of the attorney’s fees to the winning side of an unsuccessful motion if the motion was considered to be frivolous or intended to bring unnecessary delay, which is difficult to prove.
Re-evaluating Anti-SLAPP Strategies
Given the potential for abuse of these strategies and the ruling of the judges that these statutes are unclear in the probate context, there may be valid reasons that anti-SLAPP lawsuits need reconsideration. To allow for the equitable use of anti-SLAPP strategies, more clarifying legislation may be necessary.
Rather than allow for anti-SLAPP suits to continue to derail the estate administration process, it would be beneficial for legislators to reconsider the language of California’s anti-SLAPP statute and its applicability to probate. Creating specific applications for the law to probate would ensure that anti-SLAPP are fairly applied to all interested parties and only in appropriate situations.
However, to date, what few attempts have been made to amend California Code of Civil Procedure 425.17, which governs exemptions to anti-SLAPP statute 425.16, have fizzled out before revisions could be formally proposed. Reconsideration is necessary as anti-SLAPP abuse in probate and other civil courts is only likely to worsen, as litigants and their opportunistic attorneys test the boundaries of the provision’s application.
Navigate Anti-SLAPP Motions With RMO Lawyers
Anti-SLAPP statutes may be ambiguous and difficult to understand regarding how they apply to your case, potentially leading to abuse by interested parties, preventing the valid enforcement of a will. If you are involved in a case involving an anti-SLAPP motion, it’s essential to have an experienced attorney on your side so that you can understand how these statutes apply and how to minimize the risks of abuse.
Our trust and estate litigation attorneys at RMO can support you in understanding your rights when cases that involve anti-SLAPP motions arise by helping you establish a strong case that preserves the interests of your estate. With decades of experience in trust and probate estate litigation, the attorneys at RMO are prepared to support you in navigating the application of California’s anti-SLAPP statutes and a wide range of other probate disputes that can occur during estate administration.
Schedule a consultation with the team at RMO Lawyer to start discussing your case.
Glossary
SLAPP – Short for “Strategic lawsuits against public participation”, these lawsuits are often used to overwhelm litigants engaging in public speech and prevent valid complaints by requiring them to spend considerable time and money to resolve them.
Anti-SLAPP – A form of legislation intended to strike SLAPP complaints from a lawsuit to protect free speech and prevent the abuse of citizens raising valid concerns against another party.
No-Contest Clause – A clause included in a will that prevents an individual from contesting a will by stating that they will be disinherited if they lose the contest.