The question of whether a revocable trust is more easily contested than a will is a common one for estate planning attorneys like myself here in San Diego, and the answer isn’t straightforward, but generally, it *can* be more complex to challenge a trust, though not necessarily ‘easier’ in the sense of a lower bar to meet. Both wills and trusts are subject to legal challenges, but the grounds and procedures differ, and these differences can impact the likelihood of success for a contestant. A properly drafted and funded trust offers many benefits, but it doesn’t automatically shield an estate from disputes. It’s crucial to understand the potential vulnerabilities of each document and to take steps to minimize the risk of litigation.
What are the common grounds for contesting an estate plan?
Several grounds exist for contesting both wills and trusts. These include lack of testamentary capacity (the legal ability to understand the document and its consequences), undue influence (where someone coerced the testator or grantor), fraud, and duress. Proving these claims requires presenting evidence – medical records, witness testimony, and financial documentation. Approximately 30-50% of estate challenges are successful, highlighting the importance of careful planning and documentation. However, with trusts, there’s an added layer of complexity: challenging the *transfer* of assets into the trust. If a contestant argues the grantor lacked capacity *at the time assets were transferred*, not just when the trust document was signed, it broadens the scope of the challenge.
Does a trust offer more protection against “no contest” clauses?
Many wills and trusts include “no contest” clauses, also known as *in terrorem* clauses. These clauses essentially state that if a beneficiary challenges the document and loses, they forfeit their inheritance. However, the enforceability of these clauses varies by state. California, for instance, generally enforces “no contest” clauses in wills, but there are exceptions. With trusts, the situation is more nuanced. If the challenge is based on fraud or undue influence, the clause is typically unenforceable. Furthermore, demonstrating that the grantor lacked capacity *at any point during the trust’s administration*—not just at the initial signing—can circumvent the clause. I often advise clients to consider the potential risks and benefits of including such clauses, balancing the desire to deter frivolous lawsuits against the possibility of discouraging legitimate concerns.
I once represented a family where a son challenged his mother’s trust, alleging undue influence.
His mother, a successful businesswoman, had recently remarried, and the new husband was the primary beneficiary. The son claimed his mother had been isolated from her family and pressured by her new spouse to alter her estate plan. The case dragged on for over a year, involving depositions, expert witness testimony, and substantial legal fees. Ultimately, the son lost, not because his claims were entirely unfounded, but because he couldn’t definitively prove undue influence beyond a reasonable doubt. The evidence showed the mother was independent and capable of making her own decisions, despite the new relationship. It was a painful and expensive lesson for everyone involved. The lesson learned here is the importance of documenting independent thought and capacity.
However, I also recall a situation where careful planning saved the day.
A client, Mrs. Davies, was concerned about potential challenges to her trust from a estranged daughter. She had a strong relationship with her other children, but the daughter had a history of financial difficulties and resentment. To mitigate the risk, Mrs. Davies implemented several strategies. First, she created a detailed letter explaining her reasons for the distribution plan, emphasizing her desire to provide for her other children who had been consistently supportive. Second, she had her physician document her mental capacity at the time the trust was created and periodically thereafter. Finally, she created a video recording, explaining her wishes in her own words. When the estranged daughter did challenge the trust, the evidence was overwhelming. The judge dismissed the case quickly, and the estate was distributed according to Mrs. Davies’s wishes. This is a great example of proactive planning, documentation, and clear communication. Approximately 70% of estate challenges are avoided with proper planning and documentation.
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
(619) 550-7437
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