Challenging a Trust

What is a Trust Contest?

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
September 3, 2019

In this article, we answer the question, “what is a trust contest?”, including “what does it mean to challenge a trust?”, “who can contest a trust in Illinois?”, “what are the legal grounds to contest a  trust in Illinois?” and how to contest a trust in Illinois.  

For more information on Illinois trusts, check out: What is a Trust? | Illinois Trusts Explained. 

What does it mean to challenge a trust? 

A trust contest occurs when someone believes that the “trustor,” or the deceased person who made the trust, was mentally incapacitated and/or unduly influenced when he or she signed the trust document. These situations happen more often than you may think, and when this conclusion is reached, a trust contest can be filed to challenge the document’s validity. It’s oftentimes difficult to prove the trustor’s mental state at the time, especially for caretakers who were typically alone with the trustor. 

Every state in the country requires that the trustor be mentally competent and not subject to undue influence at the time of creating the trust document. “Legal mental capacity” is defined by Probate Code Section 811, stating numerous mental and psychological categories that have to be examined in order to determine whether the trustor possessed the required mental capacity. 

There are two common grounds for contesting a trust in Illinois: 1) claims that the grantor was suffering from a mental illness, or 2) claims that the grantor was subject to pressures by individuals capable of exerting influence over the grantor’s decisions. By contesting a trust, you are claiming that the trust document is not in line with what the decedent truly wanted for the estate. This can be due to lack of mental capacity, fraud, mistake, undue influence, and duress. 

To confirm the validity of a trust, it has to be proven that the trustor was aware of all of his or her assets, including bank accounts, furniture, and other “natural objects of his bounty.” These natural objects would be a spouse, children, siblings, etc. In these kinds of cases, courts often request the testimony of witnesses who can attest to the grantor’s mental state at the time of creating the trust. This includes medical professionals, as well as family friends who may be able to confirm any claims of undue influence by beneficiaries. Medical records can also be referenced to prove mental capacity, as long as it occurred around the time the trust document was signed. These documents can be subpoenaed and examined.  

For example, some family members may have motive to contest a trust out of personal greed if they would receive more property under the state’s laws of intestate succession. If a trust made no mention of close family members or children, yet instructed that all estate assets were to be given to one random individual, it would be important to consider contesting the trust for foul play. If a grandparent is not in his or her right state of mind and makes a mistake regarding the trust, it’s important to invalidate the trust in order to carry out the correct courses of action. 

Even if a trust has a “no-contest clause,” anyone can still challenge a trust. The “no-contest clause” actually refers to the fact that if a person tries to contest a trust and fails, he or she will not receive anything under the trust. Therefore, any beneficiary who challenges the trust is automatically disinherited if the trust is found to be valid. 

Who can contest a trust in Illinois? 

Anyone who is at least 18 years old, mentally competent, and has interest in the estate has the right to challenge a trust in Illinois. “Interest in an estate” can include heirs, people who were named as beneficiaries, the decedent’s creditors, and others. Parties who cannot prove a direct, financial, or existing interest in the estate may have their claims dismissed by the Illinois court. 

What are the legal grounds to contest a trust in Illinois? 

·       Undue Influence: Trusts may be challenged if they are tied to some kind of undue influence, which is understood to be a persuasion that prevents the trustor from exercising his or her own wishes. 

·       Lack of Testamentary Capacity: Trustors must be of sound mind and body when signing a trust document in order for it to be valid. Illinois courts define “sound body and mind” as the “mental ability to know and remember... the natural objects of one’s bounty, to comprehend the kind and character of one’s property, and to make disposition of the property according to some plan formed in one’s mind.” 

·       Fraud or Forgery: Unauthorized changes or alterations to a trust may constitute an instance of fraud that can invalidate the trust. This would include instances where the witnesses to the trust’s execution were untrustworthy or the trustor was not the person who actually signed the trust document. 

·       Revocation: Trusts that have gone through legal revocation are not valid anymore. If a trust has previously gone through revocation, but it is still being executed, the trust can and should be contested. 

·       Ignorance of Contents of the Trust: If a trust was created and the trustor did not take the opportunity to read through all of the contents of the trust, it can be contested. 

Despite popular belief, nobody can contest a trust simply because they do not like or agree with the trustor’s wishes. Even if the trustor verbally told people that they were going to receive something, it isn’t valid unless it’s included in the legal documentation of the trust. 

How to contest a trust in Illinois 

In order to contest a trust in Illinois, an individual has to initiate a legal proceeding that involves a trial. The first step of contesting a trust is filing a lawsuit with the Illinois probate court by filing a complaint and summons with the clerk of court. The Illinois probate court requires the plaintiff, or the person contesting the trust, to provide facts and details that, if proven, amount to grounds to invalidate the trust. The clerk will then establish the time and date of the hearing. 

A “summons” is a written notice of the hearing. The plaintiff has to send this summons to the trustee, because the trustee is the legal representation of the trust. This should be sent either through the local sheriff or by certified mail, so the plaintiff can have “proof of service” demonstrating evidence that the summons was delivered to the trustee. The plaintiff should also notify any other beneficiaries of the upcoming hearing. Plaintiffs who can contest the validity of a trust can also file a lawsuit on the grounds that the trust document is defective, meaning it doesn’t satisfy state requirements.

Contact us for an appoinment

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

O'Flaherty Law is happy to meet with you by phone or at our offices in Downers Grove, Elmhurst, Naperville, St. Charles, Lake in the Hills and Tinley Park, Illinois.

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Leave a Comment With Your Questions

Read more about

Trust Litigation & Trust Disputes

Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

Here are some articles that may interest you