Are you wondering, “Can I contest an irrevocable trust?” The answer is yes, you can. And can you contest a revocable trust? Yes, you could, but it may not be a wise thing to do.
A revocable trust lets the grantor or creator amend the terms of the trust while the grantor is alive, provided they're still mentally competent. They have more control over the trust and can even change its beneficiaries. The same can't be said of an irrevocable trust. This type of trust is meant to be irreversible during the life of the grantor. A trustee could change the legal agreement, however, upon the death of the trust's creator under some circumstances.
Most people consider an irrevocable trust to be one that can't be amended, but that isn't always the case. An irrevocable trust isn't an incontestable trust. It can be changed through a court order.
You can contest an irrevocable trust just as if it were a revocable trust or a will if a court recognizes that you have standing or a stake in the actions of the trust. A judge may agree to terminate the trust or invalidate some of the terms if you can prove your case.
Contesting on Competency Grounds
A grantor (the trust creator, sometimes called a settlor) cannot create a valid trust if he's not in his right mind. A court may set the trust aside if you can prove that the grantor wasn't mentally competent to manage his affairs.
The same applies in situations of "undue influence." Your attack on the trust may succeed if you can show that the grantor wrote its provisions because someone intimidated him or persuaded him through fraud.
Contesting on Legal Requirements Grounds
Each state sets up rules for creating and managing trusts. It would be grounds for invalidating it if you plan to contest your mother's trust and you can prove that it doesn't meet state law.
A trust isn't valid in California if it doesn't name a beneficiary. Louisiana grants children rights to a percentage of their parents' estates and won't allow a trust to deprive them of their shares. Check the state's laws and you may have a case.
Qualifications to Contest a Trust
Not everyone qualifies to contest an irrevocable trust. You have to have standing to contest a trust or will. The law has to consider you to be someone with a legitimate interest in how the trust assets are managed and distributed.
Trust beneficiaries have standing and the deceased's spouse, children and heirs usually do as well. Creditors of the trust have standing. Check your state's probate code or talk with a local attorney if you're not sure whether you have standing.
What to Consider Before Contesting
Just because you don't like the terms or didn't inherit what you expected doesn't make the terms unfair. It isn't proof of mental incapacity. Courts usually assume that the grantor is competent to dispose of her property as she chooses, so the burden of proving otherwise is on you.
You should also check whether the trust includes a no-contest rule or an anti-contest clause that cuts off beneficiaries who challenge the provisions. Keep in mind that it could lead to years of hostility if you contest what another family member receives from the trust.
A Durham, NC resident, Fraser has written about law, starting a business, balancing your budget and fighting evictions, among other legal and financial topics.