Buffington Law Firm’s trust litigation attorneys often deal with what are commonly known as “Trust Contests.” In this brief article I thought that it would be helpful to discuss what is, and what is not, a “Trust Contest.” Our trust litigation attorneys are often asked by prospective client whether whatever legal action that the client is thinking of filing would constitute a Trust Contest. This can be important because an actual Trust Contest may implicate the “No-Contest Clause”of a trust. This can, of course, have important legal implications.
(Note: this article is intended to give the reader general guidelines on this subject. Before bringing legal action, discuss these matters with an attorney. There can be exceptions to the general principles that we discuss in this article.)
A. What is a Trust Contest?
A trust contest, in its simplest form, is legal action challenging the legal validity of a trust, or a portion of a trust. A trust contest petition may allege, for example, that an entire trust writing was the product of incapacity, or induced by undue influence, such that the petitioner is asking the Probate Court to invalidate the trust writing. This may allow an earlier version of the trust, or an earlier will, to control the disposition of the estate. This may be to the advantage of the petitioner, hence his or her contemplation of bringing legal action.
Alternatively, a Trust Contest may seek to invalidate only a portion of the subject Trust. This may be a certain section of the Trust, for example. Or, a Trust Contest may seek to invalidate one or more Amendments to the Trust, such as an amendment to the Trust, such as an amendment disinheriting the Petitioner, for example.
Essentially, whenever the purpose of the Petition seeks to have the Probate Court invalidate all or some of the written Trust instrument, this is a Trust Contest. (Note: there are other things that are not Trust Contests which can, nonetheless, trigger a No Contest Clause. That is why you should always consult legal counsel before filing such an action.)
B. What is not a Trust Contest?
Certain common trust actions, while possibly brought against the Trustee of the Trust, or perhaps another beneficiary, are not Trust Contests. For example, if the Petitioner is alleging Wrongful conduct by a trustee in the context of the Trustee’s administration of the Trust, this will normally not constitute a Trust Contest or implicate a “No Contest” provision of the Trust. Challenging a Trustee’s alleged wrongful conduct is not a challenge to the validity of the Trust writing and generally never constitutes a “Trust Contest” for the purpose of a “No Contest Clause.” Petitioning for an accounting, which is perhaps the most common goal of a Trust petition, similarly is not a “Trust Contest.”
These distinctions may seem simple (they are), but Buffington Law Firm’s trust litigation attorneys have repeatedly seen circumstances where a Trustee threatens trust beneficiaries with a “No Contest Clause” action where the beneficiary has questioned the Trustee’s administration of the trust. In these instances the Trustee was trying to intimidate the beneficiary and deter legal action that had substantial justification. Normally this is just bluster; it is always permissible, if proper grounds exist, to bring legal action against improper administration of a trust by a trustee.
If you are contemplating legal action in the context of a California Living Trust, Buffington Law Firm’s trust litigation attorneys invite you to contact us for a Free Legal Consultation. All consultations are protected by attorney-client privilege and are with an experienced trust litigation attorney. And there is never any charge or obligation.
Roger J. Buffington