A recent article in the Utah Bar Journal by John A. Adams ¹ revealed interesting insights into district court judges’ opinions in trust and estate cases. These observations are important to anyone planning their estate, since we benefit from understanding what a judge might say about our efforts. This awareness can elevate the overall planning process, as well as the preparation of your actual documents.

In responding to a survey, judges reported on success rates of common claims, including undue influence; testator competency; enforceability of no-contest clauses; and discharge of a fiduciary due to breach of duties. The consensus revealed very few contested cases make it to trial and those that do face a low probability of success.

Undue influence is frequently alleged, but seldom established by a complainant. It requires proof that the wrongdoer had the opportunity to influence the testator, will receive something from the estate, that the testator was in a weakened condition at the time a will was signed, and that there was a confidential relationship between the testator and the influencer. In the judges’ experience, this claim is frequently initiated by out-of-area family members whose allegations stand in stark contrast to those of family members who were physically and emotionally close to the testator.

The burden of proof regarding testamentary incapacity rests on the person contesting the will. In Nevada (as in Utah), the threshold for establishing capacity is relatively low, and must only exist at the time documents are executed. The testator must be able to identify the natural objects of his bounty and recognize his relationship to them, recall the nature and extent of his property, and understand the plan formed for disposing of that property. When documents are prepared by a reputable attorney, steps are taken to establish testamentary capacity before documents are executed, making this a difficult claim for contestants.

No-contest clauses prohibit contests of a will or trust, but carry a perception of being unenforceable. In fact, they will be disregarded if a complainant has probable cause for instituting proceedings. Because of this, the judges recommended custom tailoring no-contest provisions by detailing the testator’s concerns in order to increase the probability of enforcement.

Although claims regarding breaches of fiduciary duty had a low success rate, the judges offered significant insights on their assessment of fiduciaries. When the fiduciary knowingly or repeatedly failed to comply with their duties, the judges responded. They were prompted to act when the fiduciary was self-dealing, failed to keep heirs informed, or blatantly violated ethical or fiduciary standards.

Consulting with an experienced attorney will give you important perspectives on procedural rules and substantive law issues. Knowing how to plan your estate property is the best defense against any future challenge. We invite you to call our office today for your complimentary estate planning consultation.

¹ John A. Adams, What Utah Trial Judges Have to Say About Trust and Estate Litigation – Survey Results, Utah Bar Journal, Vol. 29, No. 1, Jan/Feb 2016.