Even if a deceased person made you sole heir and beneficiary of his or her trust prior to passing away, it is possible that the trust could be challenged in court. For example, if you had one sibling who was disinherited, that sibling may try to invalidate the trust in order to revert back to a previous will that included him or her as an heir. Or, if a valid will does not exist and the trust is invalidated, then the estate will need to be divided equally in accordance with New York intestacy laws.
Most attorneys who take on a trust contest case do so on a contingency fee basis, in which the lawyer will not receive payment unless a favorable result is obtained in the matter. However, a lot of lawyers take on these cases for the sole purpose of negotiating a settlement with the rightful heir.
It costs money to defend against a will or trust contest case — even if it is a weak one. Therefore, in some situations, the goal is merely to obtain settlement money to make the case disappear and avoid the cost of litigation. Unfortunately, this type of legal extortion is not uncommon in New York estate cases.
Trust contest cases will be weak if the trust was created while the grantor was living independently and healthy many years ago, and if the grantor went to an estate planning lawyer and created the trust on his or her own. Trust contest cases will be much stronger in situations where the grantor was dependent on the person he or she left her estate to, went with that person to the attorney to create the trust, even selected the attorney on behalf of the grantor. The trust challenge will be even stronger if the grantor was living in an assisted living facility or had dementia when the trust was created.
Considering all this, if you want to disinherit a child, it is best to do it as early as possible. That way, the disinherited child cannot later challenge the trust or will by saying that it was made late in life when you were being influenced by someone else or were not of sound mind.
Source: Napa Valley Register, “It’s never too early to disinherit your children,” Len Tillem and Rosie McNichol, Oct. 22, 2015