Contesting the Validity of a Last Will & Testament versus a Revocable Living Trust

Any attorney handling estate planning matters will have been asked this question…what do you recommend for estate planning, a Will or a Trust?

The answer is the standard lawyer response…it depends. In fact, it depends on a variety of factors:

  • What are the family dynamics like?
  • What is the nature of assets owned?
  • Where are the assets located (in state/out of state)?
  • How are the assets titled?
  • What is the value of the estate?
  • What is the concern for privacy and ease of transfer after death?
  • What are the client’s planning goals, etc.?

Several potential pros and cons for each type of planning exist, and I will address a few over several blog entries; however, for purposes of this blog note, I will simply highlight the issue of CONTESTABILITY. In short, which one is more secure in withstanding challenges to its validity?

Last Will and Testament

A Last Will and Testament takes effect after death when a Petition to Probate has been filed with the appropriate court. A Will can be changed, modified, revised, scrapped, and started over as much as a person would like, but the last one properly signed is the one that will control. Generally, a Last Will and Testament is contested on the grounds of undue influence (someone was forced to sign) and/or lack of testamentary capacity (someone was not mentally capable to sign). Since a Will is not presented for probate until after death, the circumstances surrounding the signing can muddy the waters. I have a plaque in my office that reads “Where there’s a Will, there’s a relative.” I have seen this prove to be true. Tennessee law requires that a person have a “lucid interval” at the time of execution of a Last Will and Testament. Here’s an example to illustrate the idea of a “lucid interval” and how a Last Will and Testament might be contested on the ground of lack of capacity:
Jack wants to have a Will prepared and signed, and he supplies information to an attorney, Jerry, via telephone for the preparation of the document. Jack is 81 years old, and he has been getting confused lately about who his loved ones are and facts about his life. It is suspected that Jack may have dementia, and he lives in an assisted living facility. Jack has good days and bad days with his thinking and memory. Jerry is an estate planning attorney. At their first meeting, Jack confuses Jerry for a t.v. repair man, and he begins explaining problems he’s been having with the television. Clearly, Jerry recognizes that Jack does not have the capacity to sign. Jack calls Jerry to come for another meeting. At their next meeting, Jack is having a great day. He knows exactly who Jerry is, that he is signing a Will, who his family members are, and what day it is. Jerry explains the Will and Jack agrees, asks questions, and confirms he is ready to sign. The Will is executed in accordance with Tennessee law. Two weeks later, Jerry follows up with Jack to see how he is doing and if anything else is needed. Jack attempts to enlist Jerry to go on a trip to the moon because he believes he has been accepted into the astronaut program at NASA. The second meeting, when the instrument was signed, was done during a “lucid interval.” You can imagine that a family member that was excluded from inheriting might be inclined to challenge the validity of the Will if that person knew that in the days that followed the signing, Jack thought he was going to the moon with NASA.


Revocable Living Trust

A Revocable Living Trust, on the other hand, is effective when it is signed and assets are titled in the name of the Trust. Because of this, it is harder to contest the validity of a trust. Due to the fact that the trustors (creators) of the trust had to take subsequent action to transfer assets into the trust after it is signed, it makes it difficult to claim that the trustors (creators) were forced or didn’t understand.
Oftentimes, an individual will live for many years after the trust has been signed and is holding assets in the name of the trust. With this length of time passing from signing until death, you can see how it would be difficult for someone to contest the validity of the trust by saying that “Mom and Dad didn’t understand what they were signing sixteen years ago.”
As noted above, there are pros and cons to both methods of planning; however, from a contestability perspective, it is usually easier to contest a Will. That is not to say that a Trust cannot be challenged, it is just harder to do.
At Fidelis Law, PLLC, we are available to help counsel clients as to what planning instrument might best fit their planning goals.