There are many issues that can arise in the area of wills and trusts that have to be resolved by litigation. Litigation can involve a will contest, where the validity of a will is being challenged. There can be disagreements about the execution of the will, the capacity of the decedent to make a will, distribution to beneficiaries, disinherited heirs, or other provisions of the will.
Litigation also can result from trust disputes such as whether the trust was properly executed, interpretation of terms in the trust, the capacity of the individual executing the trust, whether there was any undue influence or fraud, rights of beneficiaries or heirs not named, or issues concerning the trustee's administration of the trust. Beneficiaries and trustees both may find themselves seeking the aid of the probate court to resolve trust issues.
Other areas that may have issues develop which need to be resolved by litigation are conservatorships, elder abuse (physical or financial) and special needs trusts.
Probate and trust litigation can often be handled by settlement, mediation, or other determination short of a trial. If there is a trial, it is usually a judge trial with a Probate Court making the determination. It is important to recognize that if you do become involved in litigating one or more issues in these areas, you need an estate planning attorney who is familiar with the litigation process. Not all lawyers are comfortable in a courtroom or have the trial experience to handle litigation.
To avoid your own will or trust from being challenged after your death, you should have your estate planning documents drafted by an estate planning attorney familiar with the issues that can result in litigation if documents are not properly drafted. Many cases in which litigation occurs could have been avoided by documents that were carefully and appropriately prepared to avoid challenge.