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Ask the Expert: Contesting an irrevocable trust

Is there any way to contest an irrevocable trust? Twenty years ago, my late father set up an irrevocable trust for his five children and their descendants. One son died a few years ago. Neither my father nor anyone in the family had been in touch with that son’s only daughter for more than 30 years, but my father never changed the trust. Now that he has passed, one-fifth of the estate will go to this granddaughter who has been estranged from the family for decades. The other siblings and their children don’t think this is fair. Can anything be done to contest that distribution?

As beneficiaries, you and your siblings have legal standing to contest your late father’s trust. But given what you say, your chances of winning such a contest are remote.

Fairness isn’t a legal issue. Your father was entitled to dispose of his money as he wished. To overturn a will or a trust, you must prove lack of capacity, undue influence or fraud, or improper execution, says John J. Barnosky, a Uniondale estate litigation attorney. This means you must prove that Dad didn’t understand what he was doing when he drew up the trust; or that he acted under duress, or as a result of being lied to; or that the document doesn’t conform to New York law.

It’s extremely hard to make such a case 20 years after the fact. Besides, the facts you’ve outlined don’t support it. At the time your father created the trust, this granddaughter had already been estranged from the family for 10 years. He clearly didn’t consider the estrangement a reason to disinherit her. And she clearly wasn’t in a position to exercise undue influence on him.

THE BOTTOM LINE A trust can’t be challenged on the grounds that it’s unfair.


TO ASK THE EXPERT Send questions to Ask the Expert/Act 2, Newsday Newsroom, 235 Pinelawn Rd., Melville, NY 11747, or email Include your name, address and phone numbers. Advice is offered as general guidance. Check with your professional consultants for your specific needs.

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