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Estate Litigation Is on the Rise – Why?

By Richard Charles Wagner | May 2, 2018

Estate Litigation Is on the Rise – Why?The death of a loved one is a difficult time. Dealing with probate issues doesn’t make things any easier, especially if it’s complicated by family disputes over inheritances or other estate matters. There are certainly many reasons estate litigation may occur after a person’s death, and they can cause many challenges and issues that can draw out probate.

Reasons why estate litigation is increasing

Various experts speculated in the beginning of 2018 that there would likely be an overall increase in estate and probate litigation, and their predictions seem to be correct.

First, estate litigation is increasing across the board. Our population is increasingly aging, so more people are passing away. That means there are more potential estates and trusts—and more potential litigation. Moreover, this segment of society has more wealth and is passing down more inheritance than any other generation, so it’s not surprising to see more battles and litigation over inheritance and assets. Further, new laws regarding trusts and estates pop up every year, which opens up entirely new areas of potential disputes. And, our society is simply becoming more litigious in general, and that includes estate litigation.

Second, some estate planning attorneys are now attempting to deal with the looming threat of estate litigation by including mandatory arbitration clauses in wills and trusts. This means that any beneficiaries must consent to binding arbitration in the event of a dispute.

There may also be clauses that cause a beneficiary to forfeit their gift if they challenge the will or trust. These no-contest clauses, also called in terrorem clauses, originally covered conduct relating to a direct contest to a will or trust. Recently, however, a number of estate planning lawyers have drafted much broader versions of these clauses. Critics of these versions claim that they can prevent a beneficiary from holding a fiduciary accountable for their actions and, further, that they violate public policy and the Uniform Trust Code. As trusts and wills are litigated with increasingly broad and creative no-contest clauses, there may be a landslide of new case law regarding how much these clauses can be enforced.

The third reason estate litigation is on the rise also relates to the Uniform Trust Code. The Uniform Trust Code, which has been adopted by Tennessee, has a provision for default rules that preside over the terms of any trust. This means the trust settlor can’t draft around those rules. Some of these rules, however, are kind of broad, like the duty of a trustee to act in good faith. Some estate planning attorneys have occasionally tried to limit a trustee’s duties or liability, and this could potentially conflict with the Trust Code’s default rules, like acting in good faith.

Because the Uniform Trust Code has only been adopted by most states within the past ten years or so, there isn’t a lot of case law yet that guides how the default rules will prevail in all scenarios. So, we’ll likely see increased litigation in this area as well.

If you’re a beneficiary to a will and are troubled or worried about the outcome, the Chattanooga probate litigation attorneys at Wagner & Wagner Attorneys at Law can help you. We may be able to file a challenge to a trust or will which was filed improperly. We serve clients in Chattanooga and Cleveland, Tennessee and all surrounding counties. Call us today at 423-756-7923 or complete our contact form to schedule your free consultation.

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