Often I am asked by my clients whether a living trust can be contested. This is the wrong question. The real question to ask is whether someone contesting a living trust can win. The answer to the first question is yes, it is easy to contest a living trust, a will, or any other type of estate plan. All you need to do is find an attorney who is willing to take your money to go file a law suit. A law suit is simply a claim for damages, some form of relief, or performance by the other party. A contest against an estate is no different from any other type of law suit. You have to have a real case and real evidence to back up your claim.

To successfully contest an estate plan you must prove in probate court that the person who had the estate was mentally incompetent, under fraud, duress, or undue influence at the time that the estate plan was signed. This is not as easy as it sounds because one of the most important requirements for a will, for example, is that there must be at least two adult witnesses not related to the testator (person signing the will) by blood or marriage, or named in the will. These two witnesses must be present when the testator signed and when they signed as witnesses. However, as difficult as this may be, wills are successfully contested more often than most people may think.

Living trusts on the other hand are extremely difficult to successfully contest. With a will, you sign the document and put it away. It may not be looked at again for years, even decades. With a living trust you set up the trust, you sign the trust, you move assets into and out of the trust, and you make changes to the trust. All of these actions create a continuing paper trail of your competence and intent and judges routinely do not overrule a living trust as they may do with a will. So to answer the second question, it is practically impossible to successfully contest a living trust.