Wills and trusts are legal instruments, and they can’t simply be challenged or altered on a whim, nor by just anyone. Contesting a will or trust is a process in which there are specific rules and procedures, as well as restrictions to who has the right to raise disputes.
The Basics: Contesting Wills or Trusts
Wills and trusts are similar legal tools in that they facilitate the division of assets, often at the end of one’s life but in some cases during the “grantor’s” life. However, there are some distinct differences:
- Wills – Wills administered through probate require asset distribution to be administered by the court, and are used solely to address the disbursement of assets after a person’s death.
- Trusts – A trust can be administered outside of probate court through a third-party individual, or “trustee,” which can allow beneficiaries to access assets more quickly than beneficiaries of wills. Unlike wills, trusts can be executed during the life of the grantor (or the person who established the trust), and provide stipulations for when trust funds can be given to beneficiaries (like when a person turns 21) or how funds are to be spent (such as for college).
Apart from these differences, wills and trusts are similar in their important aspects, including their content, their purpose, and how they’re administrated. Another similarity is that with both wills and trusts, disputes can arise over their content or administration.
Contesting a Will or Trust
Will or trust contests are a type of civil claim filed to object to its validity or other certain aspects. Should successful contests result in wills or trusts being declared invalid, it is essentially thrown out by the court. This leaves the family in a position as if there were not challenged will or trust, and can be disastrous for intended beneficiaries.
Aside from the intricacies of actually contesting a will or trust, any case begins with first determining a person’s standing to contest. Not every person can contest a will or trust; only those with legal “standing,” meaning those who would be impacted by the outcome of a case, can file suit.
Parties with Legal Standing to Challenge a Will or Trust
The following individuals may have right to challenge a will or trust:
- Disinherited / disadvantaged heirs at law – Someone (family member) who would have automatically inherited something from the deceased had there been no will or trust.
- Disinherited / disadvantages beneficiaries – Beneficiaries named in a will or trust, or beneficiaries who had been given a larger bequest in previous iterations of a will or trust.
One additional consideration before determining whether to contest is the presence of any preclusive clause. For example, some trusts may include “no-contest” clauses, which generally stipulate that any party who contests the trust and loses will not inherit anything.
Grounds for Will or Trust Contests
In addition to determining legal standing and appropriateness of challenging a will or trust, a beneficiary or legitimate heir must have valid legal grounds for contesting. Common grounds include:
- Improper Formation – A trust or will was not properly signed or witnessed and made legally valid per state law, or did not meet other applicable legal requirements.
- Lack of Capacity – The person who established the trust or will lacked the necessary capacity to do so, meaning they were not mentally capable at the time the document was created.
- Undue Influence – The person who set up the will or trust was pressured to a substantial degree so as to sign or change its terms in favor of the influencer or to disfavor another party. This is most often an issue in cases involving the elderly, the young, and others in vulnerable states.
- Fraud – A will or trust was signed by the grantor as a result of fraud or deceit, such as when they were led to believe they were endorsing some other type of document, or a will or trust with different terms.
- Existence of a More Recent Trust or Will or Codicil – A more recent trust or will or codicil exists which trumps the existing document being used to administrate assets.
In some cases, it is also possible to challenge a trust which is being mismanaged or administered improperly, after the document has already been validly executed. Trustees owe fiduciary duties to beneficiaries, and they can be challenged for failing to comply with trust provisions, taking loans against trust assets, and fraud for their own financial gain.
Legal Assistance for Challenging a Will or Trust
In summary, your ability to challenge a will or trust, and do so effectively, depends on these general factors:
- You have legal standing (as a heir or beneficiary);
- You have evaluated any restrictive clauses that may pose risks to any contest; and
- You have valid legal grounds for contesting.
Of course, there is often much more involved. Each particular point above has a number of additional implications which can be complex and nuanced, laws and procedures may vary by state, and disputes raised by others can add to the challenges. If you are looking to explore your rights and options for disputing and challenging a will and trust, Domina law Group is available to help.
Our nationally recognized team has cultivated a reputation as legal surgeons equipped with the requisite resources, depth of knowledge, and precision to handle matters as difficult as will and trust contests. We litigate more will and trust contest cases than any other plaintiffs’ firm in the state, and represent clients on both sides of disputes throughout Nebraska and states across the country.
Call (888) 387-4134 or contact us online to learn how we can be of assistance with your case.