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The Law Firm of Reed & Mansfield, Attorneys  Personal Injury & Property Damage, Las Vegas, NV

Trusts, even though they avoid the probate process, can be challenged in the Probate Court just like wills can be challenged. The difference is that for a will to be effective it must be filed with the Probate Court and a Probate case must be initiated. A trust typically never goes to Court and the expense of the Court preceding is saved. BUT, a person may challenge the validity of a trust or how a trust is administered in the Probate Court.

Will or Trust contests usually come about because late in life a person changes their estate plans to favor a non-relative such as a "new" spouse, or caretaker, "significant other" or other friend over blood relatives. The blood relatives are convinced that the new beneficiary of the estate plan used "undue influence" to get the old man or woman to include them in their estate. Or they come about because a parent treats their children unequally.

Courts generally apply a rather easy test to whether a person is mentally competent to write or change a will. In other words, if a man of 80 changes his will to favor someone who is not a relative the test is not whether the 80 year old's mind is not what it once was. Rather, the test is did his mind retain enough functioning to know who his relatives are and did he have some reason to favor this new person over his relatives.

On the other hand, Trusts are considered contracts and Courts may be more willing to invalidate a Trust than a Will if the claim is that the person had decreased mental capacity.

However, Courts will look more carefully at a claim of undue influence in the case of either a Trust or Will if the person favored by the change in a Will or Trust had been the Decedent's caretaker. So, if 80 year old Dad who is living independently takes his kids out of his Will and puts in his 40 year "girl friend" the girl friend has a pretty good change of winning a challenge. But if the 40 year old "girl friend" was helping Dad bathe and dress and eat, the kids have a pretty good chance of winning a Will or Trust contest. 

Even aside from the caretaker issue, the following questions are relevant in a Will challenge: Was the person who signed the new will or trust amendment on their deathbed? What do the medical records show about the person's mental status at the time of execution of the new document? How long did the non-relative beneficiary know the person who died? What was the relationship?

But, will or trust contests are tough. Our firm, like most attorneys, will not take a will or trust contest on a contingency fee except in very special circumstances.  Depending on the assets in the estate and whether our prospective client is a named successor trustee or executor under the will, we may or may not look to the estate to get paid. Will or trust contests can eat up significant assets out of the estate. The probate court which has jurisdiction of both trusts and wills may, depending on circumstances, allow attorneys' fees and costs for both sides out of the estate.

In addition to legal fights over who gets what, there will sometimes be legal fights over how a successor trustee or how an executor or administrator is winding up the estate for distribution.

PRACTICE TIP: if a will or trust change is contemplated late in life when the person losing out by the change may be expected to make a challenge to the new will or trust, it may be worthwhile to have the will or trust writer voluntarily submit to an examination by a psychologist who declares the write of sound mind to make any future challenge very difficult. We do not get involved in this sort of referral, we can refer you to probate lawyers who do. 

PRACTICE TIP: For our low prices, we do not want to get dragged into court as witnesses. We do not write wills or trusts or trust amendments for "old people" who do not make their own appointments, but instead an adult child makes the appointment, brings Mom or Dad into the office, and explains that the new document will favor the adult child arranging all of this over his or her siblings. On the other hand, if one of three adult children brings in Mom to do a trust that treats all three adult children equally and the motivation is to avoid probate, we don't have a problem with that.

Additional comments on will contest are on the page: Problem Probates