Having an updated Trust or Last Will and Testament is more important than ever, especially now that trust and estate litigation is on the rise. A Trust or Will that is poorly created or not frequently updated can be vulnerable to attack and contestation.
What is contestation? It is the formal objection to a Trust or Will’s validity because it either: a) doesn’t reflect the wishes of the person who created the Trust or Will, or b) because the Trust or Will does not meet the legal requirements for the creation of the document.
Trust and Will contests should be avoided at all costs. Not only can a contest derail your final wishes, but it can also rapidly deplete your estate and wreak emotional havoc on the family members left behind. Fear not. With proper planning, you can prevent that from happening.
Who can contest a Trust or Will?
Trust and Will contests are usually brought on by individuals (could be family members, close friends, or business partners) who believe they have been wrongly disinherited. However, not all of your family or friends have the ability to contest your Trust or Will in court. They must have legal “standing” to file a lawsuit. Standing means that a person involved in a lawsuit will be personally affected by the outcome of the case.
The following people have the ability to contest a Trust or Will in probate court:
- Current beneficiaries that are named in the Trust or Will
- Previous beneficiaries who were disinherited but were included in a previous Trust or Will
- An individual not named in the Trust or Will but who would be eligible to inherit property based on a state’s intestacy laws (typically a biological child or spouse)
If a Trust or Will is successfully contested, then the court will declare the Trust or Will invalid and “throw it out.” If there is a previous Trust or Will, then the court will abide by the terms of the previous document. If there are no other estate planning documents, the state’s laws of intestacy will decide who inherits your property. As you might expect, this can be a disastrous outcome for your intended beneficiaries.
What Are the Legal Grounds for Contesting a Trust or Will?
If a person does have the legal standing to challenge your Trust or Will, they must prove that the Trust or Will is invalid due to one of the four reasons below:
- The Trust or Will is incomplete or faulty. Each state has specific laws that dictate how a Trust or Will must be signed in order for it to be legally valid. A Trust or Will that has not followed these rules—signed without the proper number of witnesses, signatures missing, or omitting important text—could be contested. Each state also has specific laws that dictate how you may legally effectuate an amendment to a Trust or a Will. When the Trust or Will is not properly amended or restated, the instrument may be subject to attack.
- Lack of mental capacity. Having the capacity to make a Trust or Will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a Trust or Will. Each state has laws that set the threshold that must be overcome to prove that a person lacked sufficient mental capacity to sign a Trust or Will.
- The person making the Trust or Will was unduly influenced into signing it. As people age and become weaker both physically and mentally, others may exert influence over decisions, including how to plan their estate. Undue influence can be exerted on the young and the not so young. Undue influence is more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
- The Trust or Will was procured by fraud. A Trust or Will that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud.
How to Avoid a Trust or Will Contest
Considering the time and expense, Trust and Will contests are something you’ll want to avoid at all costs. Not only would it jeopardize your final wishes, but it also causes unnecessary and painful conflict among your loved ones during an already emotionally trying time. To avoid these disastrous and painful scenarios, consider the following:
- Do not “do it yourself”! Even the smallest mistake can leave your wishes vulnerable to being contested by an unhappy relative or business partner. Only an experienced estate planning attorney will be able to help you create, maintain and modify a plan that will discourage lawsuits.
- Discuss your wishes with your family. Don’t make your Trustee or executor the bearer of potentially bad news. It’s important to discuss your wishes with your family. You don’t have to discuss all of the intimate details of your estate plan, but letting beneficiaries know of your wishes and setting expectations for your agents can help avoid future will contests.
- Don’t just disinherit wayward child(ren). Instead of completely disinheriting a beneficiary who may squander their inheritance or use it against your wishes, you can hold their inheritance in a lifetime discretionary trust, which would be overseen by a trusted individual or third party. Your beneficiary would then receive distributions over time instead of outright cash in a lump sum.
- Keep your Trust or Will up to date. Life changes—people are born and die, property is acquired, marriages happen, and your wishes may change. Your Trust or Will is only effective when it reflects these changing circumstances. Having an updated Trust, Will and estate plan that encompasses your current goals will be better at discouraging any future challenges.
The Bottom Line on Trust and Will Contests
Trust and Will contests are on the rise. Putting together an estate plan that is designed to head off challenges will go a long way to giving you and your loved ones peace of mind.
While it is easy to assume that a Trust or Will signed in an attorney’s office is valid, this is not always the case. Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a Trust or Will legally valid in their state and may not have the expertise to draft an estate plan that is designed to avoid potential future challenges. Therefore, it is important for you to work with an attorney who is familiar with the estate planning laws of your state and the complex issues that often arise in families. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family or if any of your family members do not get along.
Our office can help you create and maintain an estate plan that will be difficult to overturn. Give us a call today.