I got a couple of weeks ago from Barry. Barry was very concerned that his mother’s trust will be challenged. Mom’s second husband died several years back. Mom and her second husband each had their own children from their first marriages. At the time of the second husband’s death his children received what amounted to his assets and property. Barry’s Mom then created her own trust and left everything that was left to her own children. Barry, being the successor trustee told me that the step children were not happy, and is worried about a challenge.
Generally trusts can only be successfully challenged on two grounds. The first is simply lack of capacity. In other words, if Mom wasn’t able to comprehend what she was doing because of a physical or mental limtation, then she couldn’t legally create or modify a trust, and therefore it wouldn’t be valid.
The second general ground for an attack is to claim that Mom’s trust didn’t reflect her wishes. This is often the result of “undue influence”. The classic example is someone holding a gun to her head and forcing her to sign. There are other, more subtle forms, such as a child on whom she is dependent for care threatening to withhold care, etc. if she didn’t do things in a way the child demands. Other versions of this attack include fraud, or tricking someone into signing a document that they don’t agree with.
In this case, we don’t seem to have any problems. The step-kids are just disappointed (mad). That isn’t enough. Hopefully the step-children will see the light and it won’t be in issue.
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