Legal Question in Wills and Trusts in Arizona

Re: challenges to a living trust

The answer to part A depends in large part on the wording of the trust. In many cases, a couple places faith in one another not to favor the survivor's children. From my experience, too much faith. Generally, one-half of the living trust will become irrevocable on the death of the first spouse. The surviving spouse, therefore, typically has the ability to divert his or half entirely to his or her own children. Furthermore, the surviving spouse often has the ability to invade the irrevocable portion of the trust during his or her lifetime, which distorts the result even further. Again, however, a lot depends on the wording of the trust.

The children of a deceased child who are cut out conceivably could challenge the trust, but it would be a difficult case to win, as they would have to show both parents were of unsound mind and/or unduly influenced. In my experience, it is fairly unusual for clients to cut out their grandchildren in this situation. It might be worth a few questions to the attorney who drafted the document.

I hope this is helpful.