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.
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.
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. Undue influence is one of the most common grounds for contesting a trust.
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.
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 are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can send us an email at firstname.lastname@example.org or call us at 718-509-9774.