Challenges to wills and trusts

Wills and trusts are legal documents, but when their creator passes, they cannot clarify themselves. The death of a loved one results in an emotional grief that, and when combined with large sums of money on the line, can cause the beneficiaries of the will or trust or the heirs of the deceased to challenge the validity, interpretation, or administration of the will or trust.

One must have “standing,” thus a legal right, to challenge the estate planning document. Pursuant to Nevada law, the Attorney General or any interested person, including a devisee (someone who receives property from a decedent by being designated in the decedent's estate planning document), may contest the will by filing written opposition to the probate of the will at any time before the hearing of the petition for probate. “Interested person” includes, an heir, devisee, child, spouse, creditor, settlor, beneficiary or any person having a property right in or a claim against the estate of a decedent.

A will or trust can be challenged by asserting that the creator lacked mental capacity to make the document. In other words, the creator was ill or impaired to the point that he or she did not know what they were doing, what document they were creating and signing, and that they did not understand the consequences of their decisions.

Fraud can also be used as grounds for challenging a will or trust. There are many types of fraud. Fraud occurs when the creator of the document was misled into signing it or into creating a document that does not express his or her wishes. It is also fraud if the document is destroyed by someone other than the creator after its execution. Fraud also occurs if a person adds a page to a document after the execution or forges the creator’s signature.

Another way to challenge a will or trust is by alleging an undue influence. Undue influence occurs when one person overpowers the free will of the document creator to the point that the creator does what is demanded rather than what he or she intended. The most drastic example involves a gun to one’s head to force a signature. However, undue influence can assume many forms in addition to such physical violence; it can include threats, blackmail, or coercion.

Lastly, if a will or trust cannot be challenged based on lack of capacity, fraud, or undue influence, then the personal representative’s or trustee’s administration of a will or trust can be challenged. If the personal representative or the trustee fails to follow the instructions left in the document, fails to send proper notices, or fails to account for his or her actions, a court may invalidate some of the actions and compel them to take a different action. In more radical situations, a personal representative or a trustee can even be removed by the court.

Interested persons might not believe that a will or trust provides for the distribution of assets as intended by the document creator. Further, they might disagree with the administration of the estate. As a result, they might pursue their rights in court. However, it is important to remember that bringing frivolous claims simply because one is dissatisfied with the received inheritance can also have legal consequences.


Natalia Vander Laan is the owner of Vander Laan Law Firm in Minden.





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