Who Can Contest a Trust in Illinois?

How to Contest a Trust in Illinois | Illinois Trust Contests Explained

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we will explain Illinois trust contests.  We will explain how to contest a trust in Illinois, including who has standing to contest a trust in Illinois, how to begin the legal process of contesting a trust, and the grounds for trust contests in Illinois.  We will also answer the question, “can an irrevocable trust be contested?”

Who Can Contest a Trust in Illinois?

There are two groups of stakeholders that are typically impacted by a will or trust, or a lack thereof: (1) beneficiaries and (2) heirs. Beneficiaries are those people who are specifically named in a will or trust. Heirs are spouses or relatives who would have a legal right to inherit if a person were to die without having a will or estate plan.  A person can be both an heir and a beneficiary if he or she would be entitled to inherit in the absence of a will or a trust and is also named as a beneficiary of the will or trust.  To learn more about who inherits in the absence of a will or a trust, check out our article, Illinois Intestacy Laws Explained.

The law requires the person contesting the trust (the “plaintiff”) must have “standing” to contest the trust. This means that he or she must have an interest in the outcome of the court’s decision. Generally, heirs and beneficiaries are the only people whose rights stand to change as a result of a trust contest, and therefore are the only people with standing to initiate a trust contest.

Beginning the Legal Process of Contesting a Trust

Legal Process to Contest a Will

The process for contesting a trust is very similar to that of contesting a will.  For details on the process that are generally applicable to both will contests and trust contests, check out our article, Illinois Will Contests Explained.

One major difference between a trust contest and a will contest is that wills can only be challenged once the person who created it has passed away. A trust can be contested whether the grantor (the person who created the trust) is alive or dead.

Contesting a trust requires a legal proceeding generally involving a trial. To begin the process, the person or people looking to contest the trust must file a lawsuit in the probate court of the state that has jurisdiction over the trust.

The probate court requires the plaintiff to file a petition stating facts that, if proven, would amount to grounds to invalidate part or all of the trust.

Grounds for Contesting a Trust

A trust cannot be contested because someone is unhappy with what is written in the document, or believes it to be unfair. The plaintiff must have grounds to claim that the trust as a whole, or certain parts, should be deemed invalid.

In order to be successful in arguing that a trust should be considered invalid, the plaintiff must prove:

  • That the grantor was not of sound mind when the trust was executed;
  • That the grantor was under undue influence at the time of execution;
  • That the trust was created as a the result of a fraud;
  • That the trust was properly revoked; or
  • That the grantor did not follow proper legal requirements regarding the execution of the trust.

The court will consider the testimony of witnesses that can attest to the mental state of the individual when he or she created the trust, such as medical experts. The court will also consider witness statements that provide insight into the claims of undue influence or fraud.

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Beginning the Legal Process of Contesting an Irrevocable Trust

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