Issue 20.11
A will or trust contest is a form of litigation in which the validity of a will or trust can be challenged. Family members, spouses, children and business partners are examples of interested parties who may have the standing (financial interest) to contest a will or trust. Dismay over the size of an inheritance is the most common reason to challenge a will or trust. However, the unfairness of asset distribution is not generally grounds for contesting a will or trust. There must be a legal defect in the document for it to be contested. The following are some reasons that a will or trust can be contested.
*The will or trust was not properly executed – A will or trust can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with statutory legal requirements. Generally, a will has more formalities to follow than a trust.
*The testator or trustor was not mentally competent – Competency to make a will means that the testator understood the nature and extent of his assets and knew the parties to whom the assets would be distributed. A will may be declared void if it can be proved that the testator was senile, delusional or of unsound mind when the will was created. The standards for executing a trust are generally the same. Incompetence may be proven by medical records, irrational conduct of the testator and the testimony of those who observed him/her at the time the will or trust was executed.
*The will or trust was the product of fraud or undue influence – Undue influence occurs when the testator or trustor is compelled or coerced to execute the will or trust as a result of improper pressure exerted upon him/her. Fraud occurs when a false statement is knowingly made causing the testator or trustor to sign a will or trust in a different manner than he/she would have if the statement had not been made.
*A second, more recent, will or trust is discovered – If proven valid, the newer will or trust would replace the older document.
*Miscellaneous reasons – There are other circumstances under which a will or trust can be contested. These include suspicions of forgery, the existence of pre-existing contracts relating to asset distribution that may nullify the distribution in the will or trust, suspicious circumstances that could cause the distribution set forth in the will or trust to be looked upon as lacking credibility, or the failure by a personal representative or trustee to properly carry out the instructions provided in the will or trust agreement.
It is important to note that there are important time constraints and procedural deadlines after which you may not be able to contest a will or trust. After probate is completed or a trust administration is finalized, it is normally not possible to initiate legal action.
Jeffery J. McKenna is a local attorney serving clients in Utah, Arizona and Nevada. He is a shareholder at the law firm of Barney, McKenna, and Olmstead with offices in St. George and Mesquite. If you have questions you would like addressed in these articles, you can contact him at 435 628-1711 or jmckenna@barney-mckenna.com.