Estate & Trust Litigation

Suffice to say, the overarching motivation for all estate planning efforts boils down to peace of mind—knowing that you have minimized tax implications, maximized the net inheritance to your beneficiaries, ensured that all conditions of inheritance requested by you are in place, and simplified the processes in the event of your death. Having gone through the effort and expense of accomplishing all of these things, the very last thing you want to happen after your die is that your heirs end up embroiled in a lawsuit. It is without any question that litigation should be avoided at nearly all costs. Litigation has been known to substantially reduce estates, and perhaps worse, destroy relationships. As you have no doubt experienced, strange things happen when money is in play.

“A stitch in time saves nine.”

There is no better application of the old saying “a stitch in time saves nine” than when making your estate plan. The best way to avoid litigation is to complete a comprehensive estate plan that sets forth clear intent and direction, is valid and enforceable, and legally uncontestable. As you develop your estate plan, you should remain ever-mindful, not only of those you are including in your plans, but perhaps even more so, those who have been excluded.

Will and trust contests can be filed by any person who has standing. Standing is a legal term that speaks to a person’s right to bring an action. In order to have standing to file an action to contest a will or trust, the person must be able to establish that they are an interested person. Typically and generally speaking, any person who would have had a right to inherit anything if the decedent died intestate.

In the context of estate planning and probate, lawsuits are provoked by a variety of events are typically fueled by a belief on the part of an interested person that by another that they have not received that to which they are entitled. This belief is obviously a subjective one.

As with anything in life, subjective beliefs run the full spectrum from rational and completely objective all the way to delusional. Fortunately, even though contestants may be delusional in their beliefs, the standard of proof required appropriately an objective one.

Upon your death, those that fall within the statutory definition of “interested persons” have standing to bring an action contesting a will and/or seeking to invalidate a trust. The group of persons who might fall within the definition of “interested persons” is wide and varied, and certainly includes spouses, children, and all beneficiaries, actual, contingent and otherwise. Contests are based upon any number of legal theories, the most common of which allege lack of capacity, undue influence, technical defects in drafting and execution of wills and trust, fraud, and forgery.

Attorneys:  Joshua I. Gornitsky

Lack of Capacity

Under the law, any person executing a last will and testament and/or a trust document is required to have the requisite legal capacity to do so. Relatively speaking, legal capacity is not an extremely high threshold. Nonetheless, it is almost always… Read More

Undue Influence

When a person is compelled or coerced to execute a last will and testament and/or a trust document by a relative, friend, loved one, or trusted advisor, there is a potential for under influence. In most instances, the person exerting the undue influe… Read More

Lack of Formalities

Proper execution (signing) of a last will and testament and/or a trust requires that the will and/or trust be signed by the client, properly witnessed, and compliant with all statutory requirements. Having handled estate litigation for many years, th… Read More