The last will and testament has been bestowed with a level of sanctity in the law approaching the divine. A person’s will is law. Whenever one writes their will, they are codifying rules they themselves are handing down. This unilateral legislation is recognized as a right everyone possesses, regardless whether you’re a politician or a prisoner. Given the solemnity employed in considering the will, the court is rather quick to entertain allegations of impropriety regarding the will’s creation. Thus, a challenge to a will is something that is not only something that can be done, it’s also a very important fail safe that been thoughtfully ingrained into our legal system.
Trusts are just like wills, except that trusts are considered living documents. Because a trust is a living entity, it avoids probate. Thus, a challenge to a trust is performed in a much different way than a challenge to a will.
In North Carolina, a challenge to a will is called a “caveat”. A caveat may be brought for any number of reasons. Maybe the testator (the person who made the will) was incompetent at the time of the signing. Maybe the will is a product of undue influence by some interloping family member. Maybe the signature on the will is a product of forgery. One may challenge a trust on same basis for challenging a will. The difference, however, is in the details.
When you challenge a will, the probate process is frozen. This means that the personal representative of the estate (read: Executor) can no longer administer the estate e.g. they cannot distribute assets. Conversely, challenging a trust does not freeze the administration of the trust. Notwithstanding a legal action, the trustee may still distribute assets. If the challenger wants to prevent this, they can seek an injunction.
An injunction is when the court is asked to compel or prevent an individual from doing something. To enjoin a trustee, one would need to prove to the court, as a matter of equity, the trustee should be prevented from distributing assets out to the beneficiaries. If you’re the one challenging a trust, you’d want to seek an injunction. It is much harder to reclaim the assets in the trust after they’ve been distributed.
Just like a will, a trust may be challenged. However, there may be extra steps to the process. If you suspect wrongdoing within the estate plan of a loved one don’t hesitate to contact McIntyre Elder Law at 704-259-7040.
Brenton S. Begley
Elder Law Attorney
McIntyre Elder Law
“We help seniors maintain their lifestyle and preserve their legacies.”