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Kevin O'Flaherty

In this article, we explain who pays attorney’s fees in trust contests.  We answer, what is a trust contest?, who can contest a trust in Illinois? and who pays the attorney’s fees in an Illinois trust contest?

What is a Trust Contest?

A trust contest is a lawsuit that is filed to object to the validity of a trust.  In order to successfully argue that a trust is invalid, the contestor must prove that there are grounds to support his or her claim.  One of the following statements must be true to contest a trust:

  • 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 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.

A trust cannot be contested because someone does not like what is written in the document or thinks it’s unfair.  A trust can only be invalid by proving the trust was created or executed improperly.

For more information about trust contests, see our article entitled How to Contest a Trust in Illinois | Illinois Trust Contests Explained.

Who Can Contest a Trust in Illinois?

In order to contest a trust, the individual contesting must be considered a “qualified beneficiary” of the trust.  Typically, this only applies to beneficiaries and heirs.  A qualified beneficiary must have the potential to be directly impacted by the outcome of the contest in order to file a suit with the court.  However, it is important to understand the conditions of the trust before taking action.  For example, if there is a “no-contest clause” in the trust, the trust can still be contested, but the beneficiary that challenges the trust will lose his or her rights to the trust if it is found to be valid.

Who Pays the Attorney’s Fees in an Illinois Trust Contest?

The attorney’s fees of a trust contestant are the responsibility of the contestant, unless accentuating circumstances lead the court to rule otherwise.  For example, the court reserves the right to impose payment of litigation or attorney’s fees to either party if it is proven that said individual breached their fiduciary duties to benefit themselves, causing harm to other parties with interests in the trust.  If you are the trustee and have a duty to defend the trust, the court can order that the trust reimburse the trustee for any legal fees incurred in its defense.

To learn more about what it means to challenge a trust, see our article entitled What is a Trust Contest?

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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