There are several varieties of trust contests. Before we discuss those, however, it is important to understand the distinction between a contest regarding the terms of a trust, and an action regarding the administration of a trust.
Many beneficiaries are afraid to bring an action to compel a trustee to fulfill his or her obligation to account for trust assets and expenses because they are under a mistaken belief that such an action would constitute a “contest”, possibly invoking a “no contest” clause in the trust and eliminating that beneficiary’s inheritance. This is a common misconception. In fact, if a trustee is not fulfilling his or her fiduciary obligation to the trust and to the trust’s beneficiaries, the beneficiaries are well within their legal rights to bring an action to compel the trustee’s performance, or to remove the trustee. This type of action will not invoke a “no contest” clause, because it is not an action that challenges the terms of the trust – to the contrary – it is an action that seeks to compel proper compliance with the terms of the trust.
A trust “contest”, on the other hand, involves an attempt by a beneficiary – or a would-be beneficiary – to revise the terms of the trust based on one of the following bases:
- lack of due execution
- lack of capacity
- fraud or undue influence
- disqualification of a beneficiary
Most often, trust contests are brought on the basis that the primary trust beneficiary or beneficiaries exercised “undue influence” over a vulnerable parent in order to get a larger share of an inheritance. Whether such claims will be successful depends on the unique facts and circumstances of each case. While a parent has every legal right to leave his or her estate to any beneficiary he or she chooses, if the gift was not made voluntarily, a court is likely to revoke it.
If you believe that the terms of a trust are the result of fraud, duress, menace, or undue influence, or that the settlor lacked mental capacity to create a trust at the time the trust was drafted, contact us to schedule a free consultation. We will objectively evaluate the facts and circumstances of your case and will give you an honest assessment about your chances of success in a legal action.
If you are a trustee of a trust and are facing a trust challenge, we can help. Our experienced attorneys will give you guidance in the administration process and can assist you with all aspects of the trust’s administration.