Trust & Will Contests


 When a relative dies, their heirs may find themselves on one side or another of a dispute over the validity of a will or trust. In some cases, heirs who are left out of a will or trust may suspect that the document is not valid because it does not express the true wishes of the deceased. In other cases, executors or trustees of a will or trust may be in a position in which they must defend that document against a claim that it is invalid. 

The most common ways in which a will or trust is found to be invalid are:

1) the person making the will or trust was mentally incompetent at the time it was executed;

2) the will or trust was the result of the exercise of “undue influence” by a person benefiting from that will or trust;

3) that the will or trust was procured by fraud; or

4) that there are defects in the way the will or trust was signed or witnessed.  

Will and trust contests are tried before a judge without a jury.

Fiduciary Abuse:

Those who serve as Trustee of a Trust or Executor/Administrator of an Estate serve in what is known as a "fiduciary" role.  A fiduciary has an obligation to act in a manner that is for the benefit of another, and in the case of a Trustee or Executor/Administrator their obligation is to the beneficiaries. Fiduciaries have a duty of the highest good faith and fair dealing, and cannot act in a manner that benefits themselves or by which they in any way gain a benefit over the beneficiaries. They must put the interest of the estate and beneficiaries before their own, and they cannot profit from transactions they undertake in their fiduciary role. 

Fiduciary abuse is far more common in Trusts than in the probate of wills, because the probate process is court supervised and most trust administration is not.   Examples of fiduciary abuse include where a Trustee takes trust property for him/herself, where a Trustee transacts business with the trust to his/her own advantage, and when a trustee treats beneficiaries unequally when they are equal beneficiaries under the trust terms.  The law provides significant remedies for beneficiaries harmed by the wrongful acts of fiduciaries, including, in many instances, compelling the fiduciary to pay the cost of a successful action against them, and to pay back any profit they made at the beneficiaries’ expense.


At Tillem McNichol & Brown, we don’t just represent trustees and executors in estate administration.  Our experienced litigation attorneys also bring and defend estate-related claims of all types throughout Northern California.  If you have a problem related to the estate of a deceased loved one, contact us at 800-996-4505 or by e-mail at for a free consultation.