How to Contest a Trust in New York

Contesting a trust in New York begins with your attorney filing a petition with the court. The petition will list all of the potential problems with the trust and will ask the court to set aside the trust. This filing will set your trust contest in motion. Don’t forget that you only have a 6-year period after the trust maker’s death to file your trust contest.

Prior to filing, you can engage a trust litigation lawyer to notify the interested parties about your intent to contest the trust. Usually, when lawyers are brought in, parties become more interested in settling than prolonging the dispute. Hopefully, you settle your claims at this level. If not, you will have to file a trust contest.

If you are contesting a trust in New York, your petition would typically allege that you are an interested party with standing to contest the trust and that the person who made the trust did not have the mental capacity to make the trust and was unduly influenced into making it. In some cases, you could also allege that the person making the trust was defrauded or forced into making it. You can even try to prove that the trust is a forgery, or that it was not made correctly.

This is pretty much all you need to know to proceed, and your attorney can explain the rest, depending on your particular case.

This next part will get a little technical, but if you are interested in the way trust contests work and would like to dip your foot in the water and evaluate your own case before you spend money on an attorney, here is a basic analysis we typically apply to contesting a trust in New York.

In the petition to contest the trust, your attorney will allege the grounds for the trust contest. The usual grounds to invalidate a trust are lack of capacity, undue influence, fraud, forgery, duress, and improper execution. Which standards the court applies depends in part on the kind of trust: New York courts tend to treat a revocable trust as a will substitute and apply will-contest standards to it, while an irrevocable trust is analyzed more like a contract. The law here is not fully settled, and courts have at times reached inconsistent results, which is one reason forum selection (discussed below) matters.

Lack of capacity

People who were elderly, weak or infirm are more likely to be shown to lack the capacity to make a trust in New York, or at the very least, highly susceptible to undue influence. The possibility of showing incapacity is greater for a decedent who was in the later stages of Alzheimer’s or dementia, who was diagnosed with a terminal illness, or who was under the influence of mind-altering medication. To prove incapacity, the decedent’s medical records are most often evaluated. A smaller threshold of mental capacity is required in the execution of a revocable trust than an irrevocable trust. Due to its permanent and unamendable nature, courts have required a trust maker to at least have contractual capacity in executing irrevocable trusts, as opposed to a lower standard of capacity required for revocable trusts.

Undue influence

To overturn a trust based on undue influence, the person contesting the trust has to show that the deceased was influenced into making the trust. Undue influence, combined with another ground (i.e., fraud) is a common reason for invalidating the trust. The burden of proof is with the person alleging that the trust should be invalidated. However, when a beneficiary of the trust is a person with whom the trust maker had a confidential relationship with, a presumption arises that the trust maker was unduly influenced by the beneficiary. In this case, the burden of proof to prove that no undue influence took place is upon the trust beneficiary. Examples of these confidential relationships are between the deceased and an attorney, physician, nursing home director, accountant, or financial advisor, and courts have extended the same scrutiny to a caregiver or a child holding a power of attorney who was active in procuring the instrument (the line of cases descending from Matter of Putnam, 257 N.Y. 140 [1931]). Keep in mind that influence becomes undue only when it amounts to coercion that overcomes the trust maker’s free agency; persuasion, affection, or kindness is not enough (Matter of Walther, 6 N.Y.2d 49 [1959]). Undue influence is one of the most common grounds for contesting a trust.

Other grounds

Trust contest grounds such as fraud, duress, forgery and improper execution can also be asserted, but they are less common.

Where to file your trust contest

In New York, you can file your trust contest both in the Supreme Court and Surrogate’s Court because they have concurrent jurisdiction over issues relating to lifetime trusts. However, contesting a trust is best done in the Surrogate’s Court because the Supreme Court usually transfers trusts and estates related disputes to the Surrogate’s Court. If there are existing proceedings regarding an estate or trust in the Surrogate’s Court, the Supreme Court will refrain from exercising its concurrent jurisdiction, especially when all relief may be obtained from the Surrogate’s Court and the Surrogate’s Court has already exercised jurisdiction over the matter. There is a second, strategic reason we usually choose the Surrogate’s Court: it is more accustomed to will contests and more likely to apply will-contest standards, which are generally more favorable to the challenger.

Under SCPA 207, the Surrogate’s Court with jurisdiction over a lifetime trust is the court of the county where (1) assets of the trust are located, (2) the grantor was domiciled when the proceeding was commenced, or (3) a trustee then acting resides or, if the trustee is a bank or other entity, has its principal office.

Watch out for hidden trusts

One of the confusing things about trust contests is knowing whether there is a trust in the first place. New York is a state that allows ultra-private trusts. For example, Florida requires a trustee to notify potential beneficiaries of the existence of a trust upon the death of the maker of the trust. Not so in New York. When a person dies in New York and leaves a will, the executor probating the will has an obligation to notify the relatives of the deceased person, even if they are not in the will. Not so with a trust. A person can die and his relatives may never even find out that the deceased left a trust that cut them out of their inheritance. This is something to keep in mind when figuring out how to contest a trust in New York. If your relative died and it looks like they have no inheritance to leave to you, it may be possible that they’ve made a trust and have cut you out of it (or have simply transferred their property to someone else before they died).

When you don’t know if your relative made a trust, you can’t challenge the trust, since you don’t know if one exists yet. What we do for our clients is we open up an estate proceeding and appoint them as the administrator of the estate. That gives them the official New York certificate with the power to request information from banks, financial institutions and other entities. If our client finds that the assets of their deceased relative were transferred to a trust, our client can then bring a trust contest to try to claw those assets back into their deceased relative’s estate.

Evidence issues in trust contests

As in all areas of litigation, your trust contest will rely on the strength of your evidence. If no confidential relationship exists between the beneficiary and the trust maker, you will have the burden of proof to prove that the trust must be invalidated. Medical records are usually obtained during discovery proceedings to determine the trust maker’s capacity. Medical records will show the doctor’s findings and any medication the trust maker was taking at the time the trust was executed. Other relevant documents, correspondences, and notes may also be obtained during discovery.

If you think that your loved one was taken advantage of when making a “trust” and you would like information about contesting a trust, we at the Law Offices of Albert Goodwin can help. We have offices in New York City, Brooklyn, NY and Queens, NY. You can send us an email at [email protected] or call us at 212-233-1233.

Who Has Standing to Contest a Trust in New York

Before the court will consider your grounds, you must show that you are an "interested person" — someone whose financial position would change if the trust were upheld or set aside. This typically includes:

• Beneficiaries named in the trust
• Beneficiaries of a prior will or trust who would receive more if the current trust were invalidated
• The trust maker's distributees — the heirs at law under EPTL 4-1.1 who would inherit if the trust failed

A friend or distant relative with no inheritance interest usually lacks standing. Establishing standing is the first hurdle in any trust contest, and it is fact-specific, so we evaluate it at the outset of every case.

The Legal Tests Behind Two Common Grounds

What you must prove for lack of capacity

To overturn a trust for lack of capacity, you generally must show that the trust maker did not understand: (1) the nature and extent of their property; (2) the natural objects of their bounty — the relatives and others affected by the trust; and (3) how the trust disposes of their property. For an irrevocable trust, you must show the trust maker lacked the mental ability to understand the nature and consequences of the transaction — what the trust does and that it cannot be undone. Because irrevocable trusts are often complex, and the very concept of permanently giving up control can be difficult for a person with diminished cognition to comprehend, a capacity challenge can be a stronger theory against an irrevocable trust. New York courts have long recognized that the capacity required to make a will is lower than that required to execute a contract or other binding instrument (see Matter of Coddington, 281 App Div 143 [1952], affd 307 NY 181 [1954]).

Execution requirements under EPTL 7-1.17

Improper execution is measured against EPTL 7-1.17, which requires that a lifetime trust be in writing, executed and acknowledged by the trust maker and any trustee, and either signed before a notary or witnessed by two persons. Failure to follow these formalities can itself be a ground to invalidate the trust.

The Deadline Depends on Your Legal Theory

While the six-year period is the general rule, New York does not have one universal deadline for every trust challenge — the applicable statute of limitations depends on the theory you plead. Fraud, mistake, and rescission claims are generally governed by CPLR 213, commonly a six-year period, with a discovery rule available for fraud claims. Claims against a trustee for breach can be subject to shorter periods and may begin running when the trustee openly repudiates the trust or when a final accounting is approved. A fraud claim, for example, must generally be brought within six years of the fraud or two years from when it was or reasonably could have been discovered, whichever is later (CPLR 213[8] and 203[g]). Beyond the statutory deadlines, the equitable doctrine of laches can bar a challenge where a party delays unreasonably and the delay prejudices the other side, for instance because trust assets have already been distributed or key witnesses have died. Because these deadlines turn on the facts and the legal theory involved, you should consult an attorney as soon as you suspect a problem rather than assuming you have six years.

How likely is a trust contest to succeed?

There is no official statistic for trust-contest win rates, and any lawyer who quotes a precise percentage is guessing. What we consistently observe is that contests that go all the way to trial and end in a complete invalidation of the trust are uncommon; the far more frequent result is a negotiated settlement after discovery reveals the relative strength of each side’s evidence. The reason is structural: New York presumes that a trust instrument that is regular on its face and properly executed reflects the grantor’s intent, and the challenger must overcome that presumption with concrete proof. Cases built on disappointment, a sense of unfairness, or vague suspicion almost never succeed.

As a rule, the chances of setting aside a trust are somewhat lower than the chances of setting aside a will. Trusts are almost always drafted by a lawyer who has had several conversations with the grantor, which produces a record of the grantor’s mental state and independence, and the execution formalities under EPTL 7-1.17 are simpler than those for a will, so an improper-execution claim is less often available. In addition, a living trust does not pass through probate, so there is no automatic court process and no SCPA 1404 examination that gives you a look at the evidence before committing; you must affirmatively commence the proceeding.

Your realistic chances rise sharply when the case has one or more of these features:

• Late-in-life amendments. A trust created years earlier that was amended shortly before death to favor someone the grantor became close to late in life.
• Documented cognitive decline in contemporaneous medical records around the date of execution.
• Isolation from family by the favored beneficiary, such as screened calls and restricted visits.
• The favored beneficiary’s role in procuring the instrument: driving the grantor to the lawyer, sitting in on consultations, paying the fee, or bringing in his or her own attorney rather than the grantor’s long-standing counsel.
• A sudden, dramatic departure from the grantor’s long-stated wishes and prior planning documents.
• Credible non-family witnesses who observed the grantor’s condition or the beneficiary’s conduct.

The opposite profile, a grantor who was plainly competent, used long-standing independent counsel, left a disposition consistent with prior plans, and was not isolated, has a low chance of success no matter how unhappy the disinherited relatives are. That said, even a contest with modest odds can have real settlement value: it creates uncertainty, discovery can turn up facts nobody knew, and the cost and delay of defending pushes the favored beneficiary toward compromise. Whether that leverage justifies the expense depends on the size of the dispute and the resources of each side.

Discovery in a trust contest

Unlike a will contest, a trust contest has no formal SCPA 1404 procedure with built-in examination rights. The substantive equivalent is available through ordinary discovery once the proceeding is commenced: subpoenas for medical, pharmacy, and financial records, document demands for the drafting attorney’s file, and depositions of the drafting attorney, the notary or attesting witnesses, the favored beneficiary, treating physicians, and family members and friends who saw the grantor around the time of execution. Where trust assets were transferred out or concealed, a fiduciary of the grantor’s estate can also use a discovery and turnover proceeding under SCPA 2103 to examine the holder under oath and compel the property’s return. Discovery is where most trust contests are effectively decided, because it exposes the documentary record before either side commits to trial; its cost should be matched to the size of the dispute.

No-contest clauses in trusts

Many trusts contain an in terrorem, or no-contest, clause providing that a beneficiary who challenges the instrument forfeits his or her share. New York enforces these clauses but construes them strictly. EPTL 3-3.5 applies by its terms to wills, but courts and drafters routinely look to its safe harbors when interpreting a trust clause, so that good-faith challenges based on forgery or revocation, and preliminary investigation of the facts, generally do not trigger forfeiture. Before filing, weigh what you receive under the trust as written, what you would receive if the contest succeeded, the probability of success, the cost, and the downside if the clause is enforced. For a beneficiary who receives little or nothing under the current trust the risk is small; for one who receives a substantial share, the clause can make a contest economically irrational. See our page on no-contest clauses in New York.

What happens if you win

A successful contest does not always mean the entire trust disappears. The court may invalidate the trust entirely, so that assets pass under a prior valid will or trust or, if none exists, under the intestacy rules of EPTL 4-1.1; it may strike a particular amendment or provision while preserving the rest where only part of the instrument is tainted; or, most commonly, the parties settle, redistributing assets or replacing the trustee on terms a court could not have imposed. A court’s power to reform a trust is limited: it cannot rewrite the instrument to defeat the grantor’s purpose.

Timeline and cost

A contested trust matter in Surrogate’s or Supreme Court commonly takes one to three years from filing to resolution, longer if it goes to a full trial. Cost depends on the scope of discovery and whether expert physicians, handwriting examiners, or extensive depositions are needed. The cost and uncertainty of litigation are themselves the strongest drivers toward settlement, and they should be weighed honestly at the outset.

Frequently asked questions

How hard is it to contest a trust in New York?

Generally difficult, because the court presumes a properly executed trust reflects the grantor’s intent and the challenger usually bears the burden of proof. Contests succeed far more often when supported by contemporaneous medical records, a confidential relationship combined with suspicious circumstances, or a genuine execution defect under EPTL 7-1.17. Most resolve by settlement rather than a trial verdict.

Is it harder to contest a trust than a will?

Usually somewhat harder. Trusts are almost always lawyer-drafted, their execution formalities are simpler, and there is no probate proceeding or SCPA 1404 examination that gives you an early look at the evidence.

What evidence wins a trust contest?

Medical records and physician testimony for capacity; proof of a confidential relationship, suspicious circumstances, and an unexplained change in plan for undue influence; and a forensic document examiner for forgery. Independent, non-family witnesses are especially persuasive.

Which court handles trust contests?

The Surrogate’s Court and Supreme Court have concurrent jurisdiction over lifetime trusts. We generally file in the Surrogate’s Court of the county identified by SCPA 207, both because the Supreme Court tends to transfer these disputes there anyway and because the Surrogate’s Court is more likely to apply will-contest standards.

How long does it take?

Commonly one to three years, depending on the court’s calendar, the scope of discovery, and whether the parties settle.