Can a Testamentary Trust Be Contested: 5-Point Helpful Guide

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Can a testamentary trust be contested? 

Yes, a testamentary trust can be contested under certain circumstances, though it is generally considered more challenging than contesting a will.

Contesting a testamentary trust usually involves legal questions about its creation, the deceased’s intentions, and whether the trust adheres to legal standards and the terms of the will.

Understanding Testamentary Trusts

A testamentary trust is created according to the instructions in a person’s will and comes into effect upon their death.

It is a legal mechanism used to manage and control the distribution of assets to beneficiaries, typically offering tax benefits and asset protection.

Testamentary trusts are particularly advantageous when the beneficiaries are minors, have special needs, or the settlor wants to protect the estate from potential future claims such as divorce settlements.

Grounds for Contesting a Testamentary Trust

Contesting a testamentary trust is a complex legal challenge that demands solid evidence and specific grounds. Here are the most frequently cited reasons for contesting a testamentary trust:

  • Lack of Capacity: This ground is based on the assertion that the deceased did not possess the mental capacity required to understand the nature and consequences of establishing the trust at the time it was created. Evidence may include medical records, testimony from medical professionals, and witness accounts of the deceased’s behaviour and state of mind when the will and trust were drafted.
  • Undue Influence: This involves claims that the trust was established due to coercion, manipulation, or undue pressure exerted on the deceased by another party, typically someone who stands to benefit directly from the trust. Proving undue influence can be difficult and often requires demonstrating that the deceased was vulnerable and that the influencer had the motive and opportunity to exploit this vulnerability.
  • Improper Execution: A testamentary trust must be established in strict adherence to legal formalities. If these formalities are not met, such as the will not being properly signed or witnessed as required by law, the validity of the testamentary trust can be contested. Legal scrutiny will focus on the documentation and processes used to create the trust.
  • Fraud or Forgery: Although less common, fraud or forgery can be grounds for contesting a testamentary trust. This might involve allegations that the trust document or its provisions are not genuinely those of the deceased but were fabricated or altered by someone else without the rightful knowledge or consent of the deceased.

Key Takeaway: Contesting a testamentary trust requires proving that one of these grounds exists and demonstrating how it influenced the terms of the trust. This requires detailed evidence and, often, expert testimony. Those seeking to contest a trust must be prepared for a detailed and potentially lengthy legal process.

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The Legal Process

To initiate a contest, an interested party—usually a beneficiary or someone who believes they have been unfairly excluded—must file a claim in a court with jurisdiction over probate matters. The process involves:

  • Gathering evidence.
  • Presenting arguments regarding the validity of the trust.
  • Possibly negotiating settlements between affected parties.

Challenges and Considerations

The complexity of contesting a testamentary trust should not be underestimated. Legal challenges can be prolonged and costly, often requiring specialised legal advice.

The emotional toll on families can also be significant, potentially leading to strained relationships and personal distress.

While contesting a testamentary trust is possible, it requires specific legal grounds and a strong case to challenge its validity.

Those considering such a step should seek experienced legal counsel to understand their rights and the feasibility of their case.

Testamentary trusts, when properly executed, are a robust component of estate planning designed to ensure that the settlor’s assets are protected and distributed according to their wishes.

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