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Challenges to Trusts or Wills: What Did the Settlor or Testator Intend?

The passing of a parent can cause discord within a family. This is especially true when a parent has left assets for their children. The children might not be convinced that the parent meant to leave assets in the way a will or trust states. Or the children might be dissatisfied by how the probate or trust is being administered. This is especially true when one sibling is in charge as the personal representative of the estate or the trustee of the trust, and another is merely a beneficiary. The experienced trust and probate litigation attorneys at Lee, Kiefer & Park, LLC, can assist in these situations.

Lee, Kiefer & Park, LLC, is a team of probate and estate lawyers. The firm is located in Las Vegas, and provides legal services throughout Nevada. The attorneys are knowledgeable and reputable. Managing partner Kennedy E. Lee and partner Matthew W. Park have been listed as a preeminent lawyers by the widely respected Martindale-Hubbell lawyer rating service. Each of the founding partners has been selected as Super Lawyers and Legal Elite. All of the attorneys received their degrees from well-respected law schools.

probate courtChallenges to a Trust or Will in Nevada

A sibling, or another beneficiary of the trust, can challenge a trust or will in multiple ways. One way is to question whether the trust or will actually states what the decedent intended. A second way is to question the trust’s administration. In other words, is the trustee following the terms of the trust? We consider both types of challenges.

Undue Influence, Lack of Capacity, and Fraud

A beneficiary might challenge a trust or will by questioning the decedent’s mental state when signing the instrument. These types of challenges have their roots in contract law. In contract law, a contract may exist, but defenses to formation of the contract could be that a contracting party was the subject of undue influence, was incompetent to understand the contract, or did not sign the contract at all (i.e. someone else forged their signature).

Undue Influence

A beneficiary could challenge a trust or will based upon undue influence. Undue influence occurs when a person overwhelms the free will of the testator/settlor so that the testator/settlor does what the other person wants rather than what the testator/settlor wants. The classic example is one person holding a gun to the head of another person to induce signature of a document. Yet the undue influence may not necessarily be a threat of physical violence. It could consist, for example, of blackmail or other types of threats. In a family situation, one child could have gone to stay with an elderly parent and coerced their parent to leave them the majority of the parent’s estate. Depending on the parent’s physical and mental condition, and the threats of the child, this could be a situation of undue influence. The key is whether the parent acted in accordance with their own intentions, or the intentions of their child. A beneficiary can challenge a trust or will if they have evidence that someone coerced the decedent to sign the trust or will using some type of threat that took away their agency.


Fraud can be a basis for challenging a trust or will. A testator/settlor could be defrauded in a number of ways. For example, a testator/settlor could be tricked into signing a trust or will that does not dispose of the property the way the testator/settlor intended. A person left out of a trust or will might substitute a page either before or after execution that would include him as a beneficiary. The signature of the testator/settlor might be forged. A trust or will might be destroyed. It is also possible that the attorney who drafted the trust or will did not state what the testator intended. There are many varieties of fraud.

Mental Incapacity

A third attack on a trust or will asserts that the document does not accurately reflect what the decedent wanted because the decedent lacked the mental capacity to make the trust or will. In other words, the decedent was debilitated or ill to the point that they did not understand what they were doing or the nature of the document when they executed the trust or will. For this reason, lawyers are careful to make sure that people understand the legal significance when signing a trust or will.

Administration of the Trust or Will

Assuming that a trust or will accurately reflects the decedent’s true intent, another way for a beneficiary to attack a trust or will is to question how the trust or will is being administered. If the trustee or personal representative administers the trust or will contrary to the terms of the governing document, , a court may invalidate some of the actions of the trustee of personal representative and compel them to take a different course of action.

An example of this type of attack would arise when the decedent leaves money and a home in a trust, but directs that one sibling receive the bulk of the money and the other receive some money and the home. If the trustee instead decides to sell the home instead of transferring it to the named beneficiary, then that beneficiary could seek a court order directing the trustee to stop the sale and to transfer the home.

If you find yourself in disagreement about whether a trust or will accurately reflects the decedent’s intent, or if there are complaints about how a trust or will is being administered, you may need an attorney to represent your interests. Additionally, if you find that a beneficiary is bringing frivolous claims challenging the terms of a trust or will, or how you are administering it, you should contact Lee, Kiefer & Park, LLC, for a free consultation, either by using the online form or by calling 702-333-1711.

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