The Difficulty of Contesting a Will vs Challenging a Trust

One of the most important tasks of an estate planning attorney is to ensure the tools used to create an estate plan can stand up to a legal challenge by a beneficiary. This is especially important when drafting a will, because it is generally considered easier to successfully contest a will than it is to contest a trust. In either case, drafting an ironclad estate plan can only help testators ensure their wishes are respected after their deaths. If you are concerned your own estate may be contested after your death, it is critical to speak with an experienced Illinois contested estates lawyer who can review and update your plan.

Successfully Contesting a Will or Trust

Whether contesting a will or a trust, a person will only be successful if he/she can prove the testator or grantor in question:

    Lacked the capacity to draft the will or establish the trust in the first place
    ● Was subject to undue influence by a beneficiary;
    ● Changed the terms of their will or trust under duress; or
    ● Did not properly execute estate plan documents by filing to obtain witnesses or sign the documents in question.

While those who contest both wills and trusts must provide proof of fraud, duress, lack of testamentary capacity, undue influence, or improper execution in order to succeed in probate court, doing so is often more difficult with trust documents because:

    ● Living trusts are more likely to be established by an attorney who is well-versed in estate law and can avoid certain pitfalls;
    ● Living trusts have the continued participation of the grantor, which makes it much more difficult for a plaintiff to establish that he/she lacked testamentary capacity or the trustor did not intend for the trust to be administered in a specific way or by a certain person; and
    ● Living trusts allow trustees to be named, which means that even if a grantor is found to lack testamentary capacity, there will be another person who is involved in making trust-related decisions who can make determinations on the grantor’s behalf.

Despite the additional difficulties of contesting a trust, it is still possible to do so, even when a trust is being distributed according to the trustor’s wishes. Ultimately, the best way to ensure this does not happen to you or a loved one is to retain an experienced attorney before creating your estate plan who can ensure you have a thorough understanding of the estate planning tools at your disposal – as well as any weaknesses in your current plan.

Obtaining Help from Contested Estates Attorneys

Those who want to establish a trust to increase the chances their assets will be distributed in the way they wish should speak with an experienced contested estates lawyer who can walk you through your legal options. Please give us a call at 847-325-5559 to schedule an initial case review with one of the dedicated attorneys at Orlowsky & Wilson, Ltd. Attorneys at Law today.

Updated as of July 2019
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