Probate Litigation

Probate Litigation Intro

Probate Attorney, Wichita, KS

Managing Will and Trust Controversies

Probate and trust controversies, including litigation, involve legal disputes over a decedent’s testamentary documents, such as a will or a trust. The probate attorneys of the Bever Dye, LC, Attorneys At Law in Wichita, Kansas, represent beneficiaries, estate representatives and trust fiduciaries in a variety of probate actions. Our firm offers reliable advice based on decades of experience, and we work aggressively to resolve issues without litigation but provide skilled representation when such controversies cannot be easily resolved.

Areas of Expertise

Although necessary at times to ensure a just allocation of estate property, probate or trust controversies can produce a lasting rift between family members while depleting the estate’s assets. These circumstances make it very important that you retain experienced and reputable legal counsel. Our attorneys are committed to developing the best strategy for fairly and expeditiously probating an estate. We resolve disputes through a variety of methods, including traditional negotiation, mediation and trial in state court.

Probate Litigation Will Contest

Will Contest

Will contests often arise when the testator’s bequests run contrary to the heirs’ expectations. Although an heir does not have the right to sue for disappointment, there are several grounds an heir can allege to invalidate a will in whole or in part.

Grounds for Invalidating a Will

The court can invalidate a will in whole or in part. If only part of the will is invalidated, the affected assets pass according to Kansas inheritance laws. If the court throws out the entire will, the entire estate is subject to the inheritance laws. To make sure your will or a loved one’s is valid, consult a reputable estate planning attorney. Grounds in which an heir can allege to invalidate a will include:

  • Flawed execution

    Under Kansas law, the will must be in writing and signed by the testator in the presence of two witnesses who must also sign. If the testator is unable to sign, a party who is not one of the witnesses may sign the testator’s name. The witnesses should be disinterested parties, and they must be competent. Violations of these rules could be grounds for invalidating the will. However, Kansas also allows for oral wills and self-proving wills if certain conditions are met.

  • Undue influence

    The law seeks to protect elderly testators who might be manipulated by self-serving individuals who have special access. When a person, such as a caregiver, arranges to have a will written or amended, and the will subsequently favors the caregiver, an argument can be made that undue influence was exercised to produce the will.

  • Coercion

    Undue influence can be a subtle exercise of emotional pressure on a vulnerable testator, but coercion is the heavy-handed use of threats, emotional blackmail and even physical abuse to compel a testator to change a will.

  • Incapacity

    A testator must be at least 18 years of age and of sound mind. Elders with dementia or even momentary lapses of clarity do not have the capacity to execute or amend a will.

  • Fraud and misrepresentation

    In this type of case, fraud is practiced upon the testator, who is deceived about the contents of the will or the effect the terms of the will are going to have.

  • Forgery

    This ground alleges the will is a fake, produced to deceive the court.

Breach of Fiduciary Duty

The administrator of an estate or the trustee of a trust has a duty to manage trust assets for the benefit of the beneficiary and to carry out the terms of the trust in good faith. Beneficiaries can bring breach of fiduciary duty actions to challenge probate administration or trust management, citing substandard or unethical performance that has caused some damage.

Questionable Performance Examples

In many cases, fiduciaries are held personally liable for losses to the trusts they oversee. If the trust loses value due to a breach, the fiduciaries may be required to reimburse the trust. Examples of questionable performance include:

  • Embezzlement

    The trustee uses his position to steal from the trust funds.

  • Misappropriation of assets

    The trustee uses trust assets for his own enjoyment.

  • Imprudent investments

    The trustee loses money through risky investments. Because all investments have an element of risk, the plaintiffs have to prove by a preponderance of the evidence that a reasonably prudent trustee would not have made such an investment.

  • Self-serving investments

    Investing trust funds in a company the trustee owns creates a conflict of interest, even when the investment would otherwise be sound.

  • Refusing to disperse benefits

    Grantors who establish trusts place conditions on the release of assets to beneficiaries. The trustee has a duty as fiduciary to interpret those instructions accurately and adhere to them. If conditions are not met, the trustee cannot disperse assets. However, if the conditions are met, a beneficiary can challenge the trustee’s refusal to disperse.

  • Failing to keep records or provide an accounting

    The trustee is required by law to keep accurate records of the trust’s finances and may be required to provide an accounting when a reasonable request is made.

Other Contested Matters

  • Will and trust construction suits

    An interested party requests that the court interprets the meaning of language in a testamentary document

  • Guardianship contests

    These are suits to decide the supervision of a person (called the ward) who does not have the capacity to make legal decisions. A ward may be a child who lacks capacity due to age or an adult who has lost capacity due to unconsciousness or dementia and has not done advanced planning or designated power of attorney.

  • Trust modification and trust reformation suits

    A formal request that the court corrects the terms of documents establishing a trust to implement the grantor’s wishes more effectively

  • Trust termination suits

    A suit to dissolve a trust because its purpose has been fulfilled or because its purpose has become impossible to fulfill

  • Estate debtor/creditor issues

    Before assets can be released to beneficiaries, the estate must settle affairs with debtors and creditors. This can involve collection actions against debtors and defense against creditors with specious claims.

Probate Litigation Attorneys

Gregory L. Franken, JD, CPA

Attorney / Member

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Robert M. Hughes, JD, LLM

Attorney / Member

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Request a Consultation

The probate attorneys of the Bever Dye, LC represent beneficiaries, estate representatives and trust fiduciaries in a variety of probate actions. We seek to avoid expensive and divisive court battles but assist in litigating aggressively when a trial is necessary. Contact us at (316) 263-8294 or complete an online form to request a consultation.

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