Can a will or trust be successfully contested?

A will is more likely to be successfully contested than a revocable living trust. While a will takes effect only upon the testator’s death, a revocable living trust becomes effective the moment the trust document is signed. In addition, most trusts remain in effect for some years following the grantor’s death because they can be helpful to a surviving spouse and/or children.

In order to contest a will, the plaintiff need only charge that the testator lacked capacity or was under undue influence when the will was signed. However, in order to successfully contest a revocable living trust, the potential beneficiary must present proof that the testator lacked capacity, or was under undue influence at the time of signing the trust document, when each asset was transferred into the trust, when each investment decision was made, and when each asset was distributed. There is, thus, a much higher burden of proof to meet with respect to contesting a revocable living trust.

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