Chances of Successfully Contesting a Trust in New York City

The chances of successfully contesting a trust in New York are a little bit lower than successfully contesting wills. This is because trusts are usually meticulously drafted by lawyers, but do not require a strict formality for execution, except for the usual acknowledgment before the notary or executed before two witnesses. Wills, on the other hand, may or may not be drafted by lawyers, and its execution requires a very strict formality with state laws in order for it to be valid. For this reason, there are more chances of successfully contesting a will than a trust.

The Process for Contesting a Trust

Contesting a trust begins with the filing of a petition with the court with jurisdiction. In New York, the court with jurisdiction over the estate of lifetime trusts is the Surrogate’s Court of the county where:

• assets of the trust estate are located,
• the grantor was domiciled at the time of the commencement of a proceeding concerning the trust, or
• a trustee then acting resides, or, if other than a natural person, has its principal office (SCPA § 207).

Any interested party may file a petition to contest the trust. A person is an interested party if he stands to be financially affected by the trust.

Grounds for Contesting a Trust

The grounds for contesting a trust are similar to contesting a will: fraud, lack of capacity, undue influence, and improper execution. More details on the grounds can be found here.

Successfully Contesting a Trust

A trust is almost always meticulously drafted by a lawyer. The trust can be several pages long and contain very detailed provisions about the management of the trust, depending on the objectives of the grantor. During this period of drafting, the lawyer would have several communications with client that could gauge the grantor’s mental state, whether the grantor was under undue influence, or whether there was fraud upon the grantor. Because of these reasons, there is a smaller probability of successfully contesting a trust than a will.

In addition, a trust is more easily executed than a will. In New York, a trust must either be acknowledged before a notary public or in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument (EPTL § 7-1.17). The will, on the other hand, requires certain formalities, such as having the testator declare to the witnesses that the instrument he is signing is his will, the witnesses to attest the testator’s signing of the will, and a self-proving affidavit to dispense of witness testimony during the probate of the will. For this reason, it is less likely that a trust is set aside on the ground of improper execution.

Still, a trust can be contested based on the grounds above, provided there is sufficient evidence to prove such ground. A lawyer with expertise in trust litigation can assist in these matters. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].