How to Challenge a Will With Trusts

When a will creates one or more trusts, disputes can arise not just over the will itself but also over the trusts it establishes. In England and Wales, trusts are commonly used in wills to manage how and when assets pass to beneficiaries - for example, where assets are held in a discretionary trust for later distribution or a life interest trust provides income during someone's lifetime. Trusts can also be used to protect assets for young beneficiaries or mitigate tax liabilities. While trusts serve important purposes in estate planning, they can become the focus of legal challenges if beneficiaries, dependants or other interested parties believe that the trust was improperly created, administered or that the will containing the trust provisions should not stand. 

This article explains how wills and trusts intersect, the legal grounds and processes for challenging trust provisions created by wills, the procedural steps involved, relevant time limits, risks, and common questions that arise. It provides practical guidance for members of the public, students and solicitors seeking to understand will‑and‑trust disputes in England and Wales.

What Is a Trust in the Context of a Will?

A trust is a legal arrangement under which someone (the trustee) holds assets for the benefit of others (the beneficiaries). In wills, trusts are often created to control how assets pass after the testator's death. Common trust types in wills include:

• Life interest trusts: Provide income or use of assets to someone for their lifetime, with the underlying capital passing to others later.
• Discretionary trusts: Give trustees discretion about how and when beneficiaries benefit.
• Protective or accumulation trusts: Designed to protect assets for vulnerable beneficiaries.
• Trusts for minors: Hold assets on behalf of children until they reach a specified age.

Trust provisions in wills are subject to both trust law and probate law in England and Wales. If the will is valid, the trust it creates is generally treated as valid, provided it meets legal requirements. However, trust provisions can still form the basis of disputes. 

Why Trusts in Wills Lead to Disputes

Trust‑related will disputes can occur for several reasons:

• Perceived unfairness: A beneficiary or dependant may feel that the trust terms favour other parties at their expense.
• Interpretation issues: The language of the trust in the will may be unclear or ambiguous.
• Suspected invalidity: The trust may be alleged to have been created under circumstances that invalidate it, such as lack of capacity, undue influence, fraud, or mistake.
• Administration concerns: Trustees may be accused of acting improperly, mismanaging trust assets, or failing to act in beneficiaries' interests.
• Beneficial interest disputes: Individuals may assert that they have a beneficial interest in trust assets or that the trust should be varied for their benefit.

Trust disputes often run in parallel with traditional will challenges and may require claims under probate or trusts law. 

Legal Grounds for Challenging a Will With Trust Provisions

1. Challenging the Will's Validity

Before delving into trust specifics, it is essential to understand that a challenge to a will's validity can affect the trust created by it. A will may be invalid for several reasons:

• Lack of testamentary capacity – The person making the will did not understand the nature and effect of their decisions.
• Lack of knowledge and approval – The testator did not know or approve the contents of the will.
• Undue influence or coercion – Another person pressured the testator into making or altering the will.
• Improper execution – The will was not executed with the required formalities under the Wills Act 1837.
• Fraud or forgery – The will contains forged signatures or was induced by deception.

If the will is declared invalid, the trust it purports to create may never arise or may fall away, reverting assets to an earlier valid will or intestacy. 

2. Trust‑Specific Grounds

Even if the will is valid, trusts created by wills can be challenged on additional or overlapping grounds:

• Lack of settlor's capacity at trust creation: For a trust to be valid, the person creating it (the testator or settlor) must have had capacity when establishing it. If a trust was formed under similar conditions as an invalid will, it may be vulnerable. 
• Undue influence in trust provisions: If the trust terms were shaped by pressure or coercion, a court may scrutinise or overturn those terms.
• Fraud or mistake: If the trust document incorrectly reflects the settlor's intentions due to error or misrepresentation, a court may remedy or set aside the trust.
• Uncertainty of trust terms: Basic principles of trust law require trust terms (beneficiaries, property and intentions) to be sufficiently certain. If a trust lacks certainty, it may fail. 
• Breach of trustees' duties: Trustees owe fiduciary duties to beneficiaries, and mismanagement, self‑dealing or failure to act can lead beneficiaries to seek court intervention. 

Procedural Steps to Challenging a Will With Trust Provisions

Step 1: Understand the Legal Standing

Before any formal action, determine whether you have standing - that is, a legal interest in the estate or trust. This typically includes:

• Named beneficiaries under the will or the trust.
• Individuals who would inherit under intestacy if the will were invalid.
• Dependants eligible for a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they are inadequately provided for.

Standing is essential because only those with a sufficient interest can bring legal claims. 

Step 2: Analyse the Will and Trust Documents

Review the will and any associated trust instruments carefully. Look for:

• How the trust is structured and what powers trustees have.
• Whether trust terms are clear or ambiguous.
• Whether the will includes obligations on trustees that are hard to fulfil or open to dispute.

Understanding precisely what the trust terms provide and how the assets are meant to be distributed is crucial before seeking legal remedy.

Step 3: Gather Evidence

Evidence is often decisive in will and trust disputes. Relevant materials may include:

• The original will and codicils.
• Medical records relating to the testator's capacity.
• Correspondence or records of instructions about the trust.
• Financial records, valuations and trustee decisions.

Early evidence gathering can strengthen a challenge and help define your legal basis.

Step 4: Preserve Your Position

You may be able to lodge a caveat with the Probate Registry if probate has not yet been granted. A caveat halts the grant of probate temporarily, giving you time to prepare your case. Once probate is granted, challenges become more complex, especially if trust assets have already been distributed. 

Step 5: Seek Professional Legal Advice

Disputes involving trusts often require expert legal assistance because they intersect trust law and probate law. A solicitor experienced in contentious probate and trust disputes can help assess your claim, gather evidence, and advise on likely outcomes and risks. 

Step 6: Consider Alternative Dispute Resolution

Before taking a case to court, beneficiaries and trustees may opt for negotiation, mediation or other forms of alternative dispute resolution (ADR). These processes can resolve disputes more quickly and at lower cost than formal litigation. 

Step 7: Initiate Court Proceedings

If ADR fails, court proceedings may be necessary. Challenges to a trust or its terms can be brought in the Chancery Division of the High Court or a relevant county court. Remedies sought may include:

• Setting aside or varying the trust.
• Removing or replacing trustees.
• An order for disclosure of trust documents.
• A declaration on the meaning of trust terms. 

The Variation of Trusts Act 1958 also gives courts power to approve changes to trust terms for the benefit of beneficiaries who cannot consent themselves, such as minors or those lacking capacity. This can be a useful route to modernise or adapt trust terms without full litigation. 

Time Limits and Procedural Considerations

Time limits vary depending on the nature of the claim:

• Claims under the Inheritance Act 1975 generally must be made within six months of the grant of probate. 
• There is no single statutory deadline for all trust challenges, but delays can weaken the strength of evidence and hinder the ability to unwind distributions.
• Rectification claims or claims asserting mistakes in trust documents may have specific limitation periods, particularly if seeking relief under trust law rather than probate statutes.

Acting promptly preserves evidence and strengthens your legal position.

Risks and Challenges

Trust disputes linked to will challenges carry specific risks:

• High legal costs: Trust litigation can be expensive, especially where expert evidence and complex legal arguments are involved.
• Family dynamics: These cases often involve close family members, and disputes can strain or sever relationships.
• Complex valuation: Trust assets, particularly businesses, property portfolios or investment portfolios, may require professional valuation.
• Enforcement issues: If trustees resist disclosure or challenge beneficiaries' rights, court applications and orders may be necessary.

Professional legal guidance is essential to navigate these risks effectively.

Common Questions from our Readers

Can I challenge a trust created in a will?
Yes. A trust created by a will can be challenged on grounds similar to general will challenges (such as lack of capacity or undue influence) and on trust‑specific grounds such as uncertainty or breach of trustees' duties. 

What is the Variation of Trusts Act 1958?
This Act allows the court to approve changes to trust terms on behalf of beneficiaries who cannot consent themselves, providing a way to vary trust terms for their benefit. 

Can trustees be removed?
Yes. Courts can remove trustees for misconduct or breach of duty and appoint replacements to ensure proper administration. 

Key Takeaways

Trusts created by wills are a key part of estate planning in England and Wales but can be the source of legal disputes when beneficiaries or dependants feel the provisions are unfair, unclear or improperly administered. Challenges may involve contesting the validity of the will itself, arguing that trust provisions are flawed, or raising concerns about trustees' conduct. Effective action requires establishing legal standing, carefully analysing the will and trust terms, gathering evidence, and acting within relevant time limits. Alternative dispute resolution can offer settlement opportunities, but litigation may be necessary in complex cases. Specialist legal advice is essential to navigate this intersection of trust law and probate and to protect your rights.