Trust Contest Lawyer in New York: Defending and Challenging a Trust

A trust contest is a lawsuit to set aside a New York trust, or an amendment to it, on the ground that the person who created it lacked capacity, was unduly influenced, was defrauded, or did not follow the execution rules in the Estates, Powers and Trusts Law. Albert Goodwin represents both sides of these cases: trustees and beneficiaries who want the trust upheld, and disinherited family members who want it set aside. This page explains the grounds for contesting a trust in New York, who has standing, which court hears the case, how long you have to bring it, and the procedural tools a trustee uses to defend the instrument. It goes deeper on the defense side, because that is where most published guidance is thin.

If you are defending a trust or considering a challenge to one, call 212-233-1233 or email [email protected].

How a trust contest differs from a will contest in New York

Trust contests and will contests rest on the same substantive grounds. The procedure is different, and the difference shapes the case. A will is offered for probate under SCPA Article 14. The proponent asks the Surrogate to admit it, distributees receive citation, and an objectant may examine the attesting witnesses and the drafting attorney under SCPA 1404 before deciding whether to file objections. A trust does not go through that process. A revocable (living) trust funded during the settlor's lifetime passes property without any court filing. The person challenging it must start a proceeding, and the trustee responds as a defendant or respondent rather than as a petitioner seeking approval.

The vocabulary also differs. The settlor (or grantor) creates the trust. The trustee administers it. The beneficiaries take under it. The objectant seeks to invalidate it. There are no SCPA 1404 examinations in a trust contest; an objectant must use ordinary disclosure under CPLR Article 31 to obtain the drafting file and medical records. Where the settlor also signed a pour-over will under EPTL 3-3.7 leaving the probate estate to the trust, the will contest and the trust contest are often litigated together, because the same facts about capacity and influence control both instruments.

This page is limited to the validity of the trust itself. If the trust is valid and the dispute is about what the trustee has done with it, see breach of trust and breach of fiduciary duty. If the dispute is about a will, see contesting or defending a will.

Which court hears a New York trust contest: Surrogate's Court or Supreme Court

Both courts can hear a challenge to a lifetime trust. The Supreme Court has general original jurisdiction under Article VI, section 7 of the New York Constitution. The Surrogate's Court has jurisdiction over lifetime trusts under SCPA 207, which reaches a trust that has assets in New York, a settlor who was a New York domiciliary when the proceeding began, or a trustee acting in New York. SCPA 1509 allows a trustee or any person interested in a lifetime trust to petition the Surrogate's Court for relief, and gives the Surrogate the same powers over lifetime trusts as over testamentary trusts.

The choice of forum is a strategic decision. Points to weigh:

• Related estate proceeding. If the settlor's will is already before a Surrogate, the trust contest usually belongs in the same court. Under CPLR 325(e), the Supreme Court may transfer a case to the Surrogate's Court when it affects the administration of a decedent's estate.
• Venue. Under SCPA 207, the proper county is generally where the settlor was domiciled, where the trust assets are located, or where a trustee resides. A Manhattan trustee administering a trust for a Queens domiciliary may face a challenge in either county.
• Experience of the bench. Surrogates and their law departments see capacity and undue influence disputes constantly. In Supreme Court, the case will be one commercial or equitable action among many.
• Jury. An action to set aside a trust seeks equitable relief and is ordinarily tried to the court without a jury in Supreme Court. In Surrogate's Court, the availability of a jury turns on the nature of the issues; a trustee should not assume one is available or unavailable without analysis.

A trustee who learns that a challenge is coming can sometimes choose the forum first by petitioning under SCPA 1509 for a decree upholding the trust, for judicial settlement of an account, or for construction of a disputed provision. Filing first forces the objectant to litigate in the court the trustee selected.

Who has standing to contest a trust in New York

Not everyone who is unhappy with a trust may challenge it. An objectant must have standing: a financial interest that would improve if the trust were set aside. This usually means a person who would take more under a prior version of the trust, under the settlor's will, or under the laws of intestacy in EPTL 4-1.1 if the challenged instrument failed. A child who was left out, or a beneficiary whose share was cut by a later amendment, generally has standing. A friend or distant relative who takes nothing under any scenario does not.

Testing standing is the first defensive step. If the objectant gains nothing even when the contested trust or amendment is invalidated, the defense moves to dismiss under CPLR 3211(a)(3) before answering. Where there are several successive instruments and each one excludes the objectant, the objectant must plead and prove grounds against each instrument back to one under which they would benefit. An objectant who can only attack the most recent amendment, and who is also excluded under the prior version, has no case.

Grounds to contest a trust in New York

For the objectant, these are the recognized grounds. For the trustee, these are the only things the objectant is allowed to prove, and the defense is built around holding the objectant to them.

• Lack of capacity. The settlor did not understand the nature of the act, the property involved, or the people who would naturally expect to inherit. The standard that applies to a lifetime trust is discussed below.
• Undue influence. Someone exerted pressure that overpowered the settlor's free will and substituted their own wishes for the settlor's.
• Fraud. The settlor was induced to sign by a knowingly false statement of fact. Fraud must be pleaded with particularity under CPLR 3016(b).
• Duress. The settlor signed under threat or coercion.
• Defective execution. EPTL 7-1.17(a) requires a lifetime trust to be in writing and either (1) executed and acknowledged by the settlor and, unless the settlor is the sole trustee, by at least one trustee in the manner required to record a deed, or (2) signed in the presence of two witnesses who also sign. A trust that fails both methods is not validly created.
• Defective amendment or revocation. Under EPTL 7-1.16, a lifetime trust is irrevocable unless the instrument expressly says otherwise. Under EPTL 7-1.17(b), an amendment or revocation must be in writing, executed with the same formalities as the trust, and delivered to the trustee. An objectant may argue that a later amendment that cut them out was not properly executed, so the earlier version controls. A trustee may argue the reverse.
• Failure to fund. EPTL 7-1.18 provides that a lifetime trust is valid as to any asset only if the asset is transferred to the trust, with the method of transfer depending on the type of property. This is not a ground to void the trust, but it is a frequent dispute about whether a particular house or account ever became trust property.

Objectants often plead every ground at once. The defense isolates which grounds are supported by facts and which are recited without proof. Capacity and undue influence are the two that survive to discovery in most cases. Fraud and duress are rarely proven.

How long do you have to contest a trust in New York

There is no single statute of limitations labeled for trust contests. The period depends on the theory:

• Capacity, undue influence and duress. These are equitable claims to set aside a transfer. Courts generally apply the six-year residual period in CPLR 213(1).
• Fraud. CPLR 213(8) allows six years from the fraud, or two years from when the plaintiff discovered or reasonably could have discovered it, whichever is later. CPLR 203(g) governs the discovery computation.
• Tolling. If the settlor was incapacitated and the claim belonged to the settlor during life, CPLR 208 may toll the period for the disability of insanity. Whether that toll helps a post-death objectant is fact-specific.
• Laches. Because the relief is equitable, a trustee may raise laches where the objectant knew of the trust, waited while witnesses died or records were destroyed, and the delay caused prejudice.

When the period starts to run is often the main fight. Objectants argue it runs from the settlor's death, when they first learned the terms. Trustees argue it runs from execution, or from the date the objectant received notice of the trust. A beneficiary who received an accounting or a copy of the instrument years earlier is in a weak position to claim ignorance. For trustees, this is one reason to give beneficiaries written notice and a copy of the trust promptly after the settlor's death. See beneficiaries' rights to trust information for what beneficiaries can demand.

A will, by contrast, must be contested in the probate proceeding itself. Once a decree admitting a will to probate is final, the remedy is a motion to vacate the decree under SCPA 209(10) and CPLR 5015, which is far harder than filing objections on time.

Capacity: which standard applies to a lifetime trust

New York law presumes that a person who signs a will or trust had the capacity to do so. The objectant bears the burden of proving otherwise. For wills, the standard is settled by Matter of Kumstar, 66 N.Y.2d 691 (1985): the testator must understand (1) the nature and consequences of signing the instrument, (2) the nature and extent of their property, and (3) the natural objects of their bounty. This is a modest standard. A person can be old, ill, forgetful, or in cognitive decline and still meet it.

For lifetime trusts, the standard is less settled, and a trustee should expect the objectant to argue for a higher one. Creating a lifetime trust is a present transfer of property and, in form, a contract between settlor and trustee. Some New York courts have therefore applied the contractual capacity standard, drawn from cases such as Ortelere v. Teachers' Retirement Board, 25 N.Y.2d 196 (1969), which asks whether the person was able to understand the nature and consequences of the transaction and to act rationally in relation to it. Other courts have applied the testamentary standard, reasoning that a revocable trust functions as a will substitute and should not be easier to attack than a will. The Court of Appeals has not definitively resolved the question. In practice the difference is narrow for a fully revocable trust that simply names who takes at death, and wider for an irrevocable trust that gives up control of assets during life.

The defense of a capacity claim develops along one of three lines:

• A favorable record. When medical records around the execution date show intact cognition, the objectant cannot overcome the presumption of capacity with speculation, and the case is a candidate for summary judgment.
• A mixed record. The case turns on expert testimony and on the lucid interval doctrine. New York measures capacity at the moment of execution, not in general. A settlor with intermittent confusion may have been lucid when they signed. The drafting attorney's testimony about the settlor's demeanor, answers, and understanding that day carries great weight.
• An adverse record. Where records show advanced dementia, delirium, or heavy psychoactive medication near the signing, the contest is serious and the trustee should evaluate settlement with open eyes. Even then, the trust stands until incapacity is proven.

Undue influence and the confidential-relationship inference

Undue influence is hard to prove. The objectant must show influence amounting to coercion that destroyed the settlor's free agency. Advice, persuasion, affection, and even persistent nagging are not enough. Under Matter of Walther, 6 N.Y.2d 49 (1959), and Matter of Collins, 124 A.D.2d 48 (4th Dep't 1987), the objectant must ordinarily show motive, opportunity, and the actual exercise of undue influence. Because it is rarely done in front of witnesses, the proof is almost always circumstantial.

The central defensive issue is the confidential relationship. Where a beneficiary held a position of trust and confidence with the settlor and was involved in procuring the instrument, New York courts may draw an inference of undue influence that the proponent must explain. Be precise about what this does. The inference requires the proponent to come forward with an explanation. It does not shift the ultimate burden of proof, which stays with the objectant. A family relationship such as spouse or child does not, by itself, create a confidential relationship. The classic case is the beneficiary who was also the settlor's attorney, drafting the instrument in their own favor; Matter of Putnam, 257 N.Y. 140 (1931), requires an explanation in that setting.

Factors that matter in practice:

• A long, close relationship helps the defense. It explains why the settlor favored this person.
• A paid caretaker who inherits invites scrutiny. The explanation must be documented: estrangement from other relatives, prior gifts, or the settlor's own stated reasons recorded by the attorney.
• Procurement activity hurts the defense. Choosing or paying the drafting attorney, scheduling the meeting, driving the settlor, or sitting in on the conference are the facts objectants emphasize. A record showing the settlor met privately with independent counsel is the strongest answer.

The Dead Man's Statute as a defensive tool

CPLR 4519, the Dead Man's Statute, bars an interested witness from testifying about personal transactions or communications with the deceased settlor when that testimony is offered against the settlor's representative or successor in interest. Undue influence and fraud claims so often rest on what the objectant says the settlor told them. CPLR 4519 strips out much of that testimony. Combined with the hearsay rule, this is a recurring reason that capacity and influence contests fail on summary judgment. The bar is waivable, so the trustee's own lawyer must not open the door by questioning the objectant about those conversations at deposition without a plan.

The drafting attorney, the file, and the privilege

The attorney who drafted and supervised execution of the trust is usually the most important witness for either side. That attorney can testify to the settlor's responsiveness, independent statement of intent, understanding of the terms, and who was in the room. Intake notes, drafts showing the settlor's own changes, and an execution memorandum can convert an arguable capacity question into a defensible one.

The attorney-client privilege does not block this testimony. CPLR 4503(b) requires an attorney, in an action involving the validity of a will or, after the grantor's death, a revocable trust, to disclose information about the preparation, execution, or revocation of the instrument. The one limit is that the court may exclude communications that would tend to disgrace the memory of the decedent. A trustee defending a trust should obtain the drafting attorney's complete file early, before the objectant frames the narrative through a deposition. An objectant should demand it in the first discovery request.

No-contest (in terrorem) clauses in New York trusts

Many trusts contain a clause providing that a beneficiary who challenges the instrument forfeits their share. EPTL 3-3.5 governs these clauses in wills and makes them enforceable, subject to safe harbors: a beneficiary may, without forfeiture, contest on the ground that the will is a forgery or was revoked by a later will if there is probable cause, object to jurisdiction, demand SCPA 1404 examinations, and seek construction of the instrument. No statute addresses in terrorem clauses in lifetime trusts. New York courts have generally enforced them by analogy to EPTL 3-3.5, and the safe harbors are commonly argued to apply as well.

For a trustee, the clause is a deterrent. A beneficiary who stands to inherit a meaningful share faces a choice between keeping it and gambling it on a contest. For an objectant, the clause requires an honest assessment of the odds before filing. It has no effect on a person who takes nothing under the trust, because they have nothing to forfeit. The clause should be raised in the trustee's answer as a defense and counterclaim; it is not self-executing.

How a trustee defends a trust contest: step by step

1. Preserve the record. Secure the original trust, every amendment, the drafting attorney's file, and the funding documents. Send a litigation hold to anyone holding settlor records.
2. Analyze standing and the chain of instruments. Determine what each objectant would take under each prior version and under intestacy.
3. Choose the forum, or respond in the one chosen. Consider a SCPA 1509 petition in Surrogate's Court to control venue and framing.
4. Pre-answer motion. Move under CPLR 3211(a)(3) for lack of standing, (a)(5) for a time-barred claim, and (a)(7) for failure to state a claim, including fraud not pleaded with particularity under CPLR 3016(b).
5. Answer and assert defenses. Plead the presumption of capacity, the in terrorem clause, CPLR 4519, laches, and ratification where the objectant accepted benefits under the trust.
6. Disclosure. Obtain the settlor's medical and pharmacy records through authorizations, depose the drafting attorney and witnesses, and depose the objectant with CPLR 4519 in mind.
7. Experts. Retain a geriatric psychiatrist or neurologist when the records are mixed. Serve expert disclosure under CPLR 3101(d).
8. Summary judgment. Move under CPLR 3212 when the objectant's admissible evidence does not raise a triable issue. Many contests end here.
9. Settlement evaluation. Weigh the cost of trial against the exposure. A settlement is a business decision, never an admission that a properly executed trust is invalid.
10. Trial. Present the attorney, the witnesses, the records, and the expert. Hold the objectant to their burden on each ground.

Who pays the trustee's legal fees in a trust contest

A trustee has a duty to defend the trust against an unjustified attack. EPTL 11-1.1 authorizes a fiduciary to retain counsel and pay reasonable administration expenses, and counsel fees incurred in good faith to defend the trust's validity are ordinarily chargeable to the trust, subject to court review for reasonableness. Two cautions apply. First, a trustee who is also the principal beneficiary accused of undue influence is defending their own inheritance, and a court may require that trustee to bear some or all of the fees personally, or defer the question until the outcome is known. Second, if the trust is set aside, fees paid from trust assets may have to be restored. The objectant generally pays their own fees unless a statute or the instrument provides otherwise. Fee questions are typically resolved in an accounting; see our page on trust and estate accountings.

Patterns we see in New York trust contests

The fact patterns below recur in our practice. They are composites, not case results, and no outcome is implied.

• The late amendment. A settlor in their eighties amends a revocable trust within a year of death to favor the child who moved in as caretaker. The other children allege incapacity and undue influence. The case turns on the drafting attorney's notes and whether the caretaker was in the room.
• The new attorney. A settlor who used the same lawyer for decades signs a new trust with a lawyer chosen by a beneficiary. The change of counsel becomes the objectant's central fact, and the new attorney's independence becomes the defense's central fact.
• The unfunded trust. The trust is valid, but the house was never deeded into it. The dispute shifts from EPTL 7-1.17 to EPTL 7-1.18 and whether the house passes under the pour-over will.
• The acknowledgment problem. A trust signed in a hospital room with one witness and no notary. The objectant argues it fails both execution methods under EPTL 7-1.17(a). The trustee looks for a later ratification or a properly executed restatement.
• The sibling with no standing. A sibling of the settlor sues, but the settlor had children who would take in intestacy and under every prior instrument. The case is dismissed at the threshold.

Frequently asked questions about contesting a trust in New York

Can a trust be contested in New York?

Yes. Any trust, revocable or irrevocable, may be set aside for lack of capacity, undue influence, fraud, duress, or failure to meet the execution requirements of EPTL 7-1.17. The objectant must have standing and must bring the claim within the applicable limitations period.

Can a trust be contested after the grantor dies?

Yes. Most trust contests are brought after the settlor's death, when the terms become known and the trust becomes irrevocable. The claim is usually governed by the six-year period in CPLR 213(1), or by CPLR 213(8) for fraud, and the trustee may argue the period began earlier than the objectant claims.

How long do you have to contest a trust in NY?

Generally six years under CPLR 213(1) for capacity, undue influence, and duress, and six years from the fraud or two years from discovery under CPLR 213(8) for fraud. The start date is often disputed, and laches may bar a claim brought within the period if the delay prejudiced the trustee.

Who has the burden of proof in a New York trust contest?

The objectant. New York presumes the settlor had capacity and signed freely. A confidential relationship between the settlor and a beneficiary who procured the trust may create an inference the trustee must explain, but the ultimate burden stays with the objectant.

Does a dementia diagnosis void a trust?

No. Capacity is measured at the moment of signing. A settlor with a dementia diagnosis may have had a lucid interval when the trust was executed. Contemporaneous medical records and the drafting attorney's testimony usually decide the question.

Is a trust contest heard in Surrogate's Court or Supreme Court?

Either. The Surrogate's Court has jurisdiction over lifetime trusts under SCPA 207 and 1509; the Supreme Court has general jurisdiction. Where a related estate is already in Surrogate's Court, the trust contest usually goes there, and the Supreme Court may transfer a case under CPLR 325(e).

Does a no-contest clause in a trust work in New York?

Generally yes. EPTL 3-3.5 governs wills, and New York courts have enforced similar clauses in lifetime trusts by analogy, with similar safe harbors. The clause only deters a beneficiary who has something to lose; a person who takes nothing under the trust is unaffected.

Who pays legal fees when a trustee defends a trust?

Reasonable fees for a good-faith defense of the trust's validity are ordinarily paid from the trust, subject to court review. A trustee who is also the beneficiary accused of undue influence may be required to bear fees personally, and fees may have to be returned if the trust is set aside.

Related New York trust and estate litigation pages

• Will contests in New York: contesting or defending a will in probate under SCPA Article 14.
• Breach of trust: claims against a trustee who mismanaged, self-dealt, or failed to distribute.
• Breach of fiduciary duty: the broader duty-of-loyalty and duty-of-care framework for executors, trustees, and agents.
• Beneficiaries' rights to trust information: what a beneficiary can demand and when notice starts the clock.
• Inheritance disputes: family conflicts over estates and trusts that do not fit a single category.
• Discovery and turnover proceedings: recovering assets that were moved out of a trust or estate.

Statutory text cited on this page is available from the New York State Senate: EPTL 7-1.17, SCPA 1509, and CPLR 4519.

About the author

This page was prepared by the office of Albert Goodwin, Esq., an attorney admitted to practice in New York who represents trustees, beneficiaries, and objectants in contested trust and estate matters in the Surrogate's Courts and Supreme Courts of New York City and the surrounding counties. To discuss a trust contest, call 212-233-1233 or email [email protected].

This article is general information about New York law and is not legal advice. The outcome of any trust contest depends on its facts. No result is promised or guaranteed.