Trust Litigation

Trust litigation normally involves one of two different issues.  Either the trustor was not mentally competent to create a trust when they did or the trustee is not properly following the terms of the trust.

If the trustee does their work properly, the first issue as to the mental competency of the trustor who is also the original trustee is a tough hurdle.  Moving accounts from their own name to the name of their trust is a great sign that the person knew what they were doing.  Handling their business in the same manner that they did before, paying bills, putting money into their trust account, and generally handling their business as they normally did are strong indications that the Trustor was mentally competent when they established their trust.

The second issue of the trustee not properly following the terms of the trust is a more common complaint.  In this situation, it is not the trustee who was also the trustor.  It’s more likely to be a successor trustee after the original trustee passed away or resigned.  Most of the time, the successor trustee will prevail but this depends upon the terms of the trust and how much discretion the trust language gave the successor trustee.  A prudent trustee will know the boundaries of what the trust allows and prohibits.  However, if the beneficiaries who are suing can demonstrate that the terms of the trust are not being followed, a court will not hesitate to enforce the terms of the trust as written.