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Contested Trusts: what are my rights?

After a death, disputes often arise within beneficiary parties over the handling of trusts. Here are some FAQs

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After a death, disputes and confusion often arise within beneficiary parties over the handling and breakdown of wills and trusts. We answer some FAQs to help.

Our answers should not be considered as formal legal advice as the background of any situation may affect the advice that we give.

I am a trustee under a will but have fallen out with my co-trustee(s), what can I do?

You should always try and resolve your disputes by speaking with your co-trustees to see if an agreement can be reached. If this is not possible, you may need to seek the court’s assistance to help you resolve the dispute. Lodders’ legal experts can help you with this.

I am a beneficiary under a trust in a will, but I don’t think the trustees are doing their job properly, what can I do?

You should seek legal advice. It is important to understand what the trust says and whether the trustees have breached any of their duties. If they have, you may be able to bring a claim to have all or some of them removed and/or apply for an order requiring them to put the breach right. This could involve the trustees reimbursing the trust for any monies which have been misspent.

I am a discretionary beneficiary under a trust in a will, what does this mean and what are my rights?

Discretionary beneficiaries have limited rights. We would need to look at the wording of the trust to determine what your rights are but, in most cases, you would not have an automatic right to receive any trust property. This would be at the discretion of the trustees.

The discretionary trust is accompanied by a letter of wishes. Does it need to be followed?

No. A letter of wishes often accompanies a will where the testator wishes to inform the trustees about matters which they would like them to take into account when they are exercising their discretionary powers. The trustees are not legally bound to carry out the wishes set out in the letter, but most usually follow a testator’s wishes.

The will contains little or no direction about the testator’s bequests. Either all or most of their wishes are contained in a letter of wishes. Can the trustees refuse to follow their wishes?

If all the testator’s bequests are contained in the letter of wishes, this is known a secret trust. If only some of the bequests are contained in the letter of wishes, this is a half-secret trust.

For such a trust to be valid, the will should state that the testator has communicated their intention to create such a trust either before or at the time the will is executed.

Again, the trustees are not bound to follow the wishes, but would usually do so. If there is a dispute over whether the trust is valid, it would be for the person challenging the trust to prove that it is invalid. This can often be a difficult task since such claims are often bought by dissatisfied beneficiaries and defended by trustees who may also be named as beneficiaries in the letter of wishes. We are able to provide expert advice about this.

More information

If you require advice in relation to your specific case, our experts can assist you. Please tell us more about your situation or query using the form below.

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Anjali Narshi

Anjali is an associate in the Dispute Resolution team at Lodders and specialises in resolving contentious trust and probate issues.