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How Are Wills and Trusts Contested?

A properly drafted Will or Trust can allow a person to dictate who will inherit from their estate when they die, without the need for arguing between family members and/or court intervention. However, in certain circumstances, the validity of a Will or Trust can be contested.

Most valid Wills and Trusts allow distributions from a deceased person’s estate to be made without being challenged. But, on occasion, an individual or entity who feels like they were improperly excluded from inheriting from the decedent’s estate will file a lawsuit to have the Will or Trust invalidated and to change how the estate will be distributed.

The Requirements for a Valid Will

The requirements for a valid Will vary from state to state, but are generally as follows:

  1. Age and Mental Capacity– the testator (the Will’s author) must be 18 years of age or older and be of sound mind and memory;
  2. Writing and Witnesses– the Will must be made in writing and signed by the testator (or by someone in his or her presence and under his or her direction); and
  3. Witnesses– the Will must be signed in the presence of 2 or more credible witnesses.
Trust Requirements

There are numerous types of Trusts. However, all Trusts require a few essential elements:

  1. A Grantor– the person who creates the Trust;
  2. A Trustee– the individual or entity appointed to administer the Trust;
  3. Beneficiaries– the person(s) who will receive the Trust benefits; and
  4. Funding– in order for a Trust to work, it must be funded by transferring assets into it
Grounds for Contesting a Will

People often make the mistake of assuming that since they don’t have a multimillion-dollar estate, there is no need for anyone to challenge their estate plan. But, Will and Trusts are challenged for many different reasons, most of which have nothing to do with the monetary value of the testator’s estate.

That said, a Will cannot be contested simply because someone is unhappy with what they received (or didn’t receive) or with who else is entitled to inherit under the Will.

To contest a Will, allegations must be made, that if true, would actually render it invalid. Common grounds to contest a Will include:

  • Undue Influence– any influence that prevented the testator from exercising his or her own wishes for the disposition of their estate, such that the testator fulfilled someone else’s wishes more than their own.
  • Lack of Testamentary Capacity– the testator did not have the mental capacity to understand what effect the Will would have and/or who would benefit from it.
  • Fraud or Forgery– the testator signed the Will believing that it was another document, or the Will was altered after it was executed.
  • Revocation– a claim that the testator intended to revoke the will
  • Ignorance of the Contents– the testator was not given the opportunity to read the contents of the will, or the contents were not properly explained to him or her before the document was signed.
Who Can Contest a Will?

Besides having valid grounds, an individual or entity who wants to contest a will must have “standing”. Standing is the legal term meaning a legal right to bring or initiate a legal proceeding or action.

The precise requirements for standing to contest a Will are different from state to state. However, the following parties have standing to contest a Will in most states:

  • Beneficiaries under the Will;
  • Heirs who would inherit in the absence of the Will;
  • Beneficiaries under a prior Will; and
  • Others who have a pecuniary interest that is affected by the probate of the Will.
The Process for Contesting a Will

The process for contesting a Will typically proceeds as follows:

  1. Documents challenging the Will are filed in the court where it was admitted to probate
  2. The documents must be filed within a specific time frame after the Will was admitted to probate
  3. The executor or personal representative of the estate must defend the Will
  4. Attempts are made at a settlement—most Wil contests are settled outside of court and before trial.
  5. If the case is not settled out of court, it will proceed to trial where a judge or jury will decide the outcome.
  6. If the will is invalidated, the court will look to a previous Will.
  7. If no previous valid Will exists, the decedent’s estate will be distributed in accordance with the state’s intestate succession laws.
Contesting a Trust

A Trust can usually be challenged on the same ground as a Will. However, although a true Trust contest may be filed, it is more common for a beneficiary to desire the Trust to be modified or terminated.

A Trust can either be revocable or irrevocable. An irrevocable trust is one that cannot be modified or terminated by the grantor once it becomes active. However, a court may modify or terminate an irrevocable Trust under either of the following circumstances:

  • The terms of the trust are impossible to honor;
  • The terms of the Trust amount to an illegal or unconscionable act;
  • To clear up ambiguities in the Trust terms or to correct unintentional mistakes; or
  • To terminate a Trust the purpose of which cannot be fulfilled, or because the Trust assets are minimal enough to warrant a termination.
No Contest Provisions

A no-contest provision is a clause that is sometimes inserted into a Will or Trust to discourage would-be challengers. Such a clause usually disinherits any beneficiary who challenges the Will or Trust by causing them to be treated as though he or she predeceased the testator.

Not all states enforce no-contest provisions and those that do require very specific language to be used in order for the clause to be enforceable. What’s more, some states will allow a Will or Trust to be contested even if it contains a no-contest provision, as long as the challenger has valid grounds for doing so.

To learn more about contesting a Will or Trust, or for information regarding any other probate or estate planning matter, consult with an experienced probate and estate planning attorney in your area.

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