Trust Contests

While not as frequently as wills, trusts are also subject to challenge for improper execution, lack of capacity, undue influence, fraud, duress, and forgery.

Lawyers often say that drafting a trust is a good way to avoid a will contest. While that may be technically true, the reality is that it only substitutes a trust contest for a will contest.

If a person lacks the cognitive capacity to sign a will, then they probably lack the cognitive capacity to create a trust. In either scenario, the document is invalid. Similarly, if someone can be unduly influenced to sign a will, they can also be unduly influenced to create a trust.

Will contests are more common simply because wills are more common.

But there are some differences. In a trust contest, the burden is on the one contesting the trust to prove that the person who created the trust (the “settlor”) lacked cognitive capacity (assuming that is the reason the trust is being challenged). In a will contest, however, the burden is on the will proponent to prove that the decedent possessed cognitive capacity.

At Ikard Law PC, we defend and contest the validity of trusts.