What Happens When a Living Trust Is Contested?

By Jeff Franco J.D./M.A./M.B.A.

When a decedent creates a trust, which courts refer to as a living trust, in lieu of drafting a will, the terms of the trust name beneficiaries and the trust assets they are each eligible to receive. However, the terms of a living trust are vulnerable to contests or challenges in state probate court by parties who claim the living trust is invalid because it violates state trust law.

Trust Contest Process

Regardless of whether the living trust is revocable or irrevocable, an individual who chooses to contest the trust document must file a lawsuit in the probate court of the state that has jurisdiction over the trust. The probate court will require the plaintiff to file certain documents that outline the legal arguments that support his trust contest. However, a plaintiff must always have standing to sue, meaning he must have some interest in the outcome of the court case.

Incompetence & Undue Influence

Every state in the country requires that the trust grantor be mentally competent and not be subject to undue influence at the time of creating the trust document. Therefore, two common grounds for contesting the terms of a living trust include claims that the grantor was suffering from a mental illness, or was subject to pressures by individuals capable of exerting influence over the grantor’s decisions. Both legal grounds essentially claim that the trust document is not representative of the decedent’s actual wishes for his estate. In these types of cases, the probate court considers the testimony of witnesses who can attest to the grantor’s mental state at the time of creating the trust, such as medical experts, as well as those who can provide insight into claims of undue influence by beneficiaries.

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Documentary Defect Contests

Plaintiffs who contest the validity of a living trust can also file a lawsuit on grounds that the trust document is defective, meaning it doesn’t satisfy state requirements. In New York, the probate courts will invalidate a living trust if the document doesn’t include a sufficient number of signatures, the document’s language is unclear and ambiguous, or if there is doubt as to the authenticity of the grantor’s signature. However, the burden is always on the plaintiff challenging the trust document to present convincing evidence that leads the court to believe that the document is defective.

Possible Outcome

Probate courts require that plaintiffs contesting a living trust have standing to sue. A common occurrence is the contest by an individual who is eligible to inherit a decedent’s property through state intestate succession laws, but who isn’t a beneficiary of the trust. Intestate succession laws provide the framework on how to distribute a decedent’s estate in the absence of a will. Therefore, if an individual successfully convinces a probate court to invalidate a living trust, the state has no choice but to distribute the trust property in accordance with its intestate succession laws rather than pursuant to the terms of the trust.

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What Can Invalidate a Living Trust?


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