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In What Situations Can I Contest a Trust?

Young woman reviewing contacts with a lawyer

A great trust can change the lives of its beneficiaries forever. On the other hand, if the trust is likely invalid, it might make sense to try and contest it.

Every state is different, but the short answer is yes. You’ll need to work with your lawyer to decide whether or not you have a strong case. The key is determining that the trust is contestable. This usually becomes evident by asking the following questions.

Incapacity or Lack of Legal Capacity

Was the person who created the trust mentally competent when they set up the trust? If they were able to think clearly and independently, this question doesn’t apply. But let’s say someone had Alzheimer’s disease and was losing their memory. In that case, you may be able to contest the trust.

Can a Beneficiary Contest a Trust?

Was the person who died subject to influence from a beneficiary? Let’s say one of the person’s children was taking care of them during the time the trust was set up. That wouldn’t be surprising according to a report from 2015 showing over 34 million Americans have been caregivers to an adult over 50 within a 1 year period.

Undue Influence or Coercion

Could it be that the person taking care of the trustor was making threats to the trustor during the time the trust was set up? For example, maybe the caregiver threatened to withhold critical medicine or even food and drink unless the trustor created a trust to benefit them or perhaps the caregiver was constantly verbally abusive. This can lead to the trustor essentially being forced to sign a trust against their own wishes.

Could the signature have been forged, or was there fraud? Setting up the trust may have involved forgery. Maybe a trust gets set up but the trustor decides they don’t want to go through with it, then someone forges a signature.

Is the trustee breaching their fiduciary duty? The trustee has an important job to do. They are supposed to distribute the funds as intended by the trust and outlined by the trustor. If they fail to do that, the trust may be contested. If you think any of these things are happening, you may have a case to contest the trust.

Can an Irrevocable Trust be Contested?

Similar to the question above, the short answer is yes. You’d generally need to prove the trustor may have been influenced by someone to create the trust they did or did not have full mental capacity at the time it was created. However, there is one stipulation we need to call out.

Not everyone can contest an irrevocable trust. The only people that can are those who have standing, or a stake in the action of the trust. For example, let’s say a trustor has three children. Two of them were included in the irrevocable trust and one was left out. In that case, the third child may have standing and can try to contest the trust.

Can a Living Trust be Contested?

Only about 42% of people have a will or living trust, but sometimes these need to be contested as well. Just as in the cases above, you can contest a living trust but you would need to have grounds to do so. If you can prove the trustor was being negatively influenced by someone in order to gain from the trust or may have been suffering from a mental disability, you may have grounds to contest the trust.

We Can Help

Can a trust be contested? Sometimes, but you need an experienced team to help you do so. Send us an email and we’ll be in touch ASAP to help set things right for you and your loved ones.


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