By: Roger J. Buffington, Esq.
Trust litigation often begins with a beneficiary or heir’s receipt of a “120 Day Letter” from a successor-trustee of a living trust. On this Blog we have written frequently about such letters because they are of critical importance to actual or potential trust beneficiaries. The 120 Day Letter contains many important provisions but the single most important component of such a letter is its short time horizon for a beneficiary to contest the trust. Essentially, the recipient of such a letter has a limited time, either 60 or 120 days as explained in the letter, after receipt of such letter to bring a trust contest. This is not a great deal of time. Most other Statutes of Limitations are measured in years, not a few months. This narrow time window reflects a very strong public policy in favor of getting trust disputes out of the way and inheritances distributed without a lot of delay. No doubt on balance this policy operates for the public good. But there can be no question that it penalizes those who choose to procrastinate dealing with what is sometimes an obviously troubling situation that requires, at a minimum, legal advice.
To be clear, not all trust disputes are trust contests. Most trust contests are disputes dealing with the actual trust provisions. There are an infinite number of examples of these, but some of the most common are when there is a suspicious amendment to the trust, often created late in the life of the trustor (trustmaker) that appears to plainly contradict the known wishes of the deceased trustor. Again, there are an infinite number of variations on this theme. Often in these situations undue influence against the trustor is involved. Buffington Law Firm’s trust litigation attorneys once dealt with a case in which the trustor was known to have been comatose, completely non-responsive and on life support, for her last two months of death. But miraculously that same person while comatose had apparently engaged an attorney (not her usual longstanding attorney) and approved a 40 page restated trust that gave the entire estate to one of the trustor’s five children despite a longstanding wish that the five children would take equally. By incredible coincidence, only the attorney involved in this scenario was a witness to the now-deceased trustor having approved the complete change to the estate plan. The need for legal action was obvious. Delay almost prevented successful legal action.
A trust contest differs from certain other trust disputes that are not subject to the 60 or 120 day time limitation. For example, the trust writing itself may be just fine, but the trustee may be engaging in breaches of trust. Taking court action against such a misbehaving trustee is not a trust contest, and generally does not implicate a trust’s no-contest clause. Nonetheless, delay in seeking legal advice is never a good idea when confronted with such a situation.
If you are involved in a trust dispute, whether it be a possible trust contest, or some other trust dispute, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an experienced trust litigation attorney, and are completely confidential and subject to the attorney-client privilege. And there is never any obligation.