Estate Litigation Lawyers
If a beneficiary in a will who expected a large bequest and got a much smaller one (or nothing at all), or a bequest was made to a formerly unknown heir, a contested will litigation can arise.
There are several common grounds we see for contesting a will. Those grounds include:
- Undue influence
- Lack of testamentary capacity
In order to contest a will, the person who wants to contest the will must have standing. That means that the person must already be a named beneficiary in the will. People who would have received a bequest if the deceased had died without a will (“heirs at law”) also have standing.
Lastly, a person who was named in a prior will, but who is not named in the will submitted to probate, or who received a smaller bequest in the probated will, has standing to contest the will.
BREACH OF FIDUCIARY DUTY
A fiduciary is a person or entity (such as a bank) that has a special relationship of trust with another person. In estate planning, the executor of a will is a fiduciary to the named beneficiaries of the will. In a trust, the trustee is a fiduciary to the beneficiaries named in the trust agreement.
Other examples of a fiduciary would be a person who was named in a will as a guardian to a minor or an agent named in a power of attorney.
There are several actions that a fiduciary could take that could be deemed a breach of their fiduciary duty:
- Embezzlement of the trust’s assets by the trustee or of the probate estate by the executor or administrator
- Failure of the trustee to follow the terms of the trust agreement
- Failure of the executor to follow the deceased’s instructions in the will
- Removal of assets from the trust without the knowledge or approval of the beneficiaries