Ever since the ancient laws of primogeniture (the eldest son gets it all) were swept away by the right to make a will, heirs have objected to even the best made wills and trusts. Conflicts can arise before or during the administration of an estate or a trust. Here are a few common examples of how a Will or Trust could be challenged.

Validity: Everybody has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else. It IS possible, however, to set aside a will or trust. A person contesting the estate plan must prove that at the time it was signed, the deceased lacked mental capacity, or that the will or trust was procured as the result of undue influence, fraud, or duress. Also, some wills or trusts are invalid because they were not properly executed. For example, if the witnesses to the will signed the will after the fact, and did not actually see the decedent sign the will, then the will may be invalidated.

Breach of Fiduciary Duty: A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of competency. A fiduciary must always consider the best interests of the trust or estate before his or her own interests. When a personal representative or trustee profits from his or her position, or fails to safeguard assets, they may have breached their fiduciary duty. The beneficiaries damaged as a result can file a lawsuit against the personal representative or trustee.

Contract to Make a Will: Sometimes people make promises they don’t keep. Some of these promises relate to wills and trusts. Here’s a common one, “Someday, son, all this will be yours.” So what does the son do when dad dies without fulfilling his promise? Sometimes, it is possible to enforce what the courts call a “Contract to Make a Will.” If the “contract” was not in writing, it still may be enforceable if the person to whom the promise was made changed his or her position in reliance upon the promise, and suffered a detriment as result. For example, Mom promises to one of her daughters that if she moves in and cares for mom at home for the rest of her life, then that daughter would inherit the home. Then, the daughter gives up her job, sells her home, and takes care of mom around the clock for two years. But after mom’s death, the dutiful daughter discovers that mom’s will divides mom’s entire estate, including the home, between all six children. The daughter may have a valid claim against mom’s estate for a breach of contract.

If you are in the process of doing your estate planning, you should consider the issues set forth above in making your estate plan. Your goal should be to create an estate plan that would be as free as possible from any grounds for a will or trust contest. If you are a beneficiary that has been disinherited because of actions taken by other individuals, this article can provide some information related to your situation. In an ideal world, there would be no will or trust disputes. Unfortunately, it is unrealistic to think there would be no will or trust contests. In doing your estate planning, you and your attorney should be mindful of how to create an estate plan that minimizes the possibility of it being contested.

Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna & Olmstead, PC, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (435) 628-1711 or jmckenna@barney-mckenna.com.