When planning your estate, you should be aware of the possibility of estate contests. You may have even heard about challenges to the validity of a person’s Last Will and Testament (the “will”).
A person’s will can be challenged based on various grounds. One of these is undue coercion. If an interested party believes the testator was coerced into signing the will, the validity of the will could be questioned. Since senior citizens often rely on the assistance of others, a care provider could threaten to withhold their assistance if the will is not signed.
Another challenge to the will could be that the testator was not of sound mind when he or she executed the document. Since wills must be properly constructed and executed pursuant to state law, an improperly executed will may not be valid.
Fraud is another possibility. If the decedent executed the will under fraudulent circumstances, the probate court could deem the will to be invalid.
Challenging a Revocable Living Trust
Revocable living trusts are often used by people hoping to avoid probate. However, a will has to be admitted to probate court in order to fulfill your wishes. Inheritances can not be distributed to your beneficiaries until the case has been closed by the court.
This process can take months, or even years, and can be accumulate significant expenses during the probate process.
Although revocable trusts enable probate avoidance, they do not erase all the potential negative circumstances. While some people believe you cannot challenge the terms of a trust, this belief is inaccurate.
As noted above, probate provides a ready opportunity for challenges as the matter is already in the hands of the court. All you have to do is step forward and state your case.
On the other hand, the administration of a trust does not take place under the supervision of the probate court. Therefore, if you want to contest a trust, you must initiate a legal action on your own.
To do this, you must retain legal counsel. Litigation involving a trust challenge can be a lot more complex and costly.
You may have heard that it is possible to include a no-contest clause in your trust. The clause would state that anyone who challenges the trust will be entirely disinherited.
This may serve as a disincentive to to challenge a trust by someone who is receiving an inheritance due to the risk of forfeiting their share of the inheritance.
However, the no-contest clause does not prohibit a challenge. Someone could still contest the trust, even if a no-contest clause was contained within it.
Blaine Peterson
Author, Attorney
Parman & Easterday
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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