What Are the Chances of Successfully Contesting a Trust?

Trusts are estate planning tools recognized for protecting privacy, often avoiding the probate process, and for controlling how the trustor’s assets are managed and distributed. However,  they may also be challenged, as with any other legal instrument. Current or potential beneficiaries may sometimes question whether a trust is valid or being handled properly, raising concerns about contesting a trust.

Indeed, in some circumstances, a trust may be challenged, but solely under specific circumstances, within strict deadlines, and through a well-defined court process.

This article explains when a trust may be contested in Georgia, the grounds that may support a challenge, and the key factors that can affect the chances of success.

What Is a Trust Contest?

A trust contest is a legal challenge to the validity of a trust or to a trustee’s handling of it. 

In Georgia, simply being unhappy with their inheritance is not an acceptable reason to contest a trust. 

Instead, the contestant should prove that the trust does not reflect the real intentions of the person who created it (also known as the trustor, settlor, or grantor). 

Or that there is a serious reason to question the trust itself, because of undue influence, fraud, lack of capacity, misconduct by the trustee, etc.

Here are the most important facts to know about contesting a trust in Georgia.

The Georgia Trust Contest Statute of Limitations

Georgia law imposes firm deadlines for contesting trusts, especially for revocable trusts after a settlor’s death:

• Two-Year deadline for revocable trusts: Any legal proceeding to challenge the validity of a trust that was revocable before the grantor’s death should be commenced within two years after the date of death. If no one files a case within that period, and the trustee has no notice of a pending dispute, they may distribute assets according to the trust’s terms without being held liable.
• Sixty-Day Notice Rule: If a beneficiary sends the trustee written notice that they intend to contest the trust, the trustee must wait sixty days before making distributions. To keep the right to challenge the trust, the beneficiary must file the lawsuit within 60 days.
• Statutes of Limitation for Ancillary Claims: Separate claims arising from a trust dispute may be subject to different deadlines. In Georgia, a breach of trust claim usually must be filed within six years, or within two years if the trustee sent a written report that clearly disclosed the claim. Fraud claims generally have a four-year deadline, and actions on a written instrument usually have a six-year deadline. The precise deadline depends on the type of claim and when it was, or reasonably should have been, discovered.

Missing these deadlines almost always bars your claim, so acting right away once you become aware of grounds to contest is essential.

Grounds for Contesting a Trust

Not every dispute leads to a trust contest. Generally, Georgia courts consider a challenge when supported by one or more recognized legal grounds:

Fraud

A trust based on forged documents or false statements is normally invalid. Such situations may include:

• Forgery of the grantor’s signature.
• The settlor was tricked into signing a document they did not understand.
• The trust document was swapped or altered.

In many cases, these situations require expert handwriting analysts, notary records, and testimony to establish what actually happened.

Undue influence

If someone can prove that another person allegedly used threats, strong pressure, or a position of trust to manipulate the grantor into making changes to the trust against their free will, the court may cancel the trust or remove certain parts of it.

These situations may include, but are not limited to, isolation from family or friends, exploitation of a confidential relationship, or dependence on a caregiver.

Lack of capacity

The grantor’s mental capacity at the time of signing is one of the main requirements for creating a valid trust. 

When someone intends to contest a trust on the grounds that the settlor was not of “sound mind,” they would typically need to prove that the grantor did not entirely and correctly understand what they were signing. 

That may include the nature and consequences of the trust, the property involved, or the potential beneficiaries’ claims. These situations typically involve physician testimony, medical records, and continuous observations of the trustor’s behavior.

Breach of fiduciary duties

Although this is not a direct challenge to the trust’s validity, beneficiaries may bring a claim against a trustee for breaching duties such as loyalty, prudent administration, or impartiality. 

If a breach is proven, the court may award monetary damages, order an accounting, and, in some cases, remove the trustee.

Incorrect execution

Georgia law specifically requires that trusts meet certain formalities – typically, the deed must be signed by the settlor, clearly identify the trust property and beneficiaries. 

Also, the trust document should be signed in the presence of an appropriate witness and notarized, if the trust instrument so provides. 

If a trust was not properly executed under state law (e.g., missing signatures, improper notarial procedures, or the absence of witnesses), it may be declared invalid.

Technical errors in the trust document

Vague or conflicting terms in a trust document, even if they were unintentional, can lead to:

• Disputes over the distribution.
• Challenges over whether an asset is “included” in the trust.
• Multiple interpretations of a clause.

If the trust language is ambiguous or contains technical errors, litigation often becomes a battle of interpretation. When you are facing such a situation, it is recommended that you speak with an attorney specializing in trust litigation.

The above list of grounds for litigation presents only some of the most common cases and is not exhaustive. Some other situations not listed here may appear.

Steps of the Trust Litigation Process

Pre-suit investigation

Before filing, it’s important to carefully gather all the information. It is generally recommended to review all versions of the trust instrument, related wills, codicils, and amendments. 

Relevant information may include different versions of the trust, related estate documents, medical and financial records, personal communications, and statements from witnesses to the signing or from people who discussed the trust’s terms.

Filing the petition

Filing in the appropriate Georgia court is usually the first step in a trust dispute. It establishes the legal grounds for the challenge and the measures requested, which may be invalidation of the entire trust or a request to revoke a trustee.

Service and response

All interested parties must be notified. The trustee may respond by contesting the facts or defending themselves, such as by asserting proper trust management or the existence of a waiver clause.

Discovery stage

Both sides may exchange documents, present witness testimony, and hire experts to support their case. These experts may be psychiatrists, handwriting analysts, or forensic accountants. 

This stage can be time-consuming and expensive, especially when medical or financial documents span over multiple years.

Alternative dispute resolution

Georgia courts often encourage mediation or settlement conferences in trust disputes. These processes are common and give the parties an opportunity to negotiate a resolution without going to trial. 

Depending on the case, that may include changes to the trust, an agreed distribution plan, or certain concessions made by the trustee.

Motions and pre-trial rulings

Parties may file motions to resolve legal issues early, such as verifying the filing deadline, determining whether certain evidence is admissible, or whether parts of the claim should be dismissed.

Trial

If mediation doesn’t resolve the dispute and pretrial motions do not end the case, the matter generally moves to the court. 

At this stage, the judge hears witnesses, examines the documents submitted, and considers the opinions of experts hired by each side. In most cases, the person contesting the trust must prove the claim with clear and convincing evidence.

Appeal

Unsuccessful parties can appeal to the Georgia Court of Appeals or the Supreme Court. In this case, appeals do not focus on reexamining all the evidence, but rather on interpretations and legal errors.

Who Can Contest a Trust?

Under Georgia state law, not everyone can challenge a trust. Usually, the contestant must have legal standing, meaning a real financial interest in the outcome.

If winning the contest would mean the contestant would receive a greater inheritance than they currently receive, they have standing.

Often, parties with standing in trust may include:

• Beneficiaries named in trust who would lose under its terms: People already listed in the trust who may lose assets or receive less because of the trust’s terms. This group may include family members, heirs, or others who believe the trust treated them unfairly.
• Would-be beneficiaries: People who are not named in the trust, although they believe they would have inherited under an earlier estate plan or under Georgia intestacy law. This often includes a spouse, child, grandchild, siblings, contesting a trust, or another person who expected to receive part of the deceased person’s assets.
• Personal Representatives and Conservators: In some cases, representatives of the grantor’s estate or a conservator appointed for an incapacitated grantor may have standing to contest.
• Creditors: In some circumstances, a creditor may have standing to challenge a trust. This may happen if the creditor believes the trust was created or changed to hide assets, avoid debts, or defraud creditors.

To bring a challenge, the individual or entity generally must show that they were harmed, or could be harmed, by the trust’s terms or by the way the trust is being handled. Without that direct interest, the court may not allow the case to move forward.

Chances of Successfully Contesting a Trust in Georgia

The chances of successfully challenging a trust depend on multiple factors, including the available evidence, legal grounds, and applicable law. Even if these claims may be complex, a trust challenge may succeed under the right circumstances.

These are some key factors that may affect the outcome:

The Legal Grounds for contesting the trust play an important part

The ability to prove undue influence, lack of capacity, fraud, or errors in the trust document may be a more compelling ground when supported by clear evidence.

The availability and quality of evidence

The documents supporting the allegations can make an important difference in a trust challenge. Helpful proof may include documents, witness statements, professional opinions, and other facts that support the claim.

Timing

Trust challenges must be filed within the required deadline; missing it can affect the chances of success. If you think you may have grounds to contest a trust, it is a good practice to determine which deadlines apply to your specific situation.

Applicable laws

Under Georgia law, trust litigations are governed by state statutes and court decisions. In general, to challenge a trust, it is recommended to understand the applicable legal rules, filing deadlines, and required evidence.

Because these cases can be complex, it is usually a good practice to speak with an experienced trust litigation lawyer.

Resolution options

Depending on the specific circumstances, there may be chances to resolve the case through settlement, mediation, or negotiation outside of court. Sometimes, using alternative dispute resolution may lead to a better outcome and avoid lengthy litigation.

Court proceedings

The result of trust litigation frequently depends on the evidence presented and the judge’s interpretation of the law. Strong legal representation and clear arguments in court may affect the chances for success.

Costs and risks

Challenging a trust can be expensive and time-consuming. For people who consider challenging a trust, it is generally recommended to evaluate the potential costs and risks against the likelihood of success before initiating the dispute.

In conclusion, the chances of successfully contesting a trust vary widely depending on the specific facts and circumstances of each case. 

If you are considering contesting the trust of a deceased loved one, speaking with an experienced attorney specializing in trust administration and litigation may help you better understand your rights and options.

Can an Irrevocable Trust be Contested?

Yes. Even though an irrevocable trust is meant to be harder to change, it can still be contested in Georgia. 

A challenge may be possible if there is strong evidence of undue influence, fraud, lack of capacity, or serious misconduct by the trustee.

In some cases, Georgia courts may also allow an irrevocable trust to be terminated or modified.

Can a Trust Be Contested After Death?

Yes, in Georgia, a trust may be contested after the person who created it dies. In many cases, when the trust was revocable right before the settlor’s death, the challenge should be filed within two years of the settlor’s death.

Separate claims against a trustee for breach of trust may be subject to different rules and timelines.

How Long Do You Have to Contest a Trust in Georgia?

In Georgia, the deadline depends on what kind of trust claim you are bringing.

If a person challenges the validity of a trust that was revocable right before the settlor died, they have two years from the settlor’s death to file the case. Missing that deadline may permanently bar the claim and prevent the court from setting the trust aside.

If the claim is instead against a trustee for breach of trust, the general deadline is six years from the date the beneficiary discovered, or reasonably should have discovered, the claim. 

That period can be shortened to two years if the beneficiary received a written report that adequately disclosed the claim.

How Much Does It Cost to Contest a Trust?

In Georgia, the cost of contesting a trust can vary widely. The total usually depends on attorney’s fees, court filing fees, service costs, expert witnesses, and the complexity of the case.

Trust contests frequently become more expensive when they involve medical records, financial tracing, depositions, or expert testimony.

It’s worth mentioning that the attorney’s fees are not automatically recoverable in every case. Georgia law generally says litigation expenses are not part of damages unless certain conditions are met, such as bad faith.

Can a Non-Beneficiary Contest a Trust?

Yes, but only in some cases. In Georgia, a non-beneficiary usually must show standing, meaning a direct legal or financial interest in the trust or its outcome. Without that kind of interest, the court may not allow the challenge to move forward.

When to Consult a Trust Litigation Attorney?

It is recommended to speak with a trust litigation attorney as soon as you believe something is wrong with a trust or the way the trustee is managing it. 

In Georgia, timing matters. If you want to challenge the validity of a trust that was revocable just before the settlor’s death, you generally must file your complaint within two years of the settlor’s death. If your concern is a breach of trust, a different deadline may apply.

You may need legal help if you believe someone used undue influence, fraud, or pressure to create or modify the trust, or if you believe the trustee is hiding information, misusing trust assets, acting unfairly, or refusing to provide an accounting. 

Georgia law allows a beneficiary to seek relief such as damages, an accounting, an injunction to prevent a breach, or the removal of the trustee.

It is a good practice to consider getting advice before sending a notice to an administrator, accepting a distribution, or waiting too long to act. Early legal guidance may help you protect your rights, gather documents, and avoid missing a deadline.

Conclusion

Trust disputes can be difficult, and the success often depends on the types of claim involved and the strength of your evidence. 

Because these cases generally may raise complex procedural and legal issues, it is recommended to speak with an experienced lawyer specialized in trust litigation who can evaluate the circumstances and explain the available options. If you are a trust beneficiary and have questions about contesting a trust in Georgia, don’t hesitate to get in touch with our office for a consultation. We would love to help!