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Trust Under Duress

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clogginaimee

Junior Member
OK-My parents went through a nasty divorce this year. Long story short, my oldest brother helped my father change assets into my older brother's name so that they wouldn't be part of the divorce. They also established a trust during the past 3 months so that he would inherit the items given to our father in the divorce. Now that the divorce decision is final, my brother has no use for my father anymore.

My father killed himself, my brother informed us 10 days after the fact. We are trying to find out if there is a way we can contest this trust? Is there a time period that the trust has to be established before it is considered legally binding? Obviously my father was under duress in our eyes, but what would the court see it that way?
 


tranquility

Senior Member
I don't see duress so much as fraud which was assisted.

While I don't see a clear path to the OP achieving success here, it certainly is worthwhile to see an attorney. One path to attack is if there was a trust created in the first place. Common law requirements of a trust are:
Intention to create a trust, the items or subject matter covered by the trust and what the goal or object of the trust is.

Generally, the courts hold that the purpose must not be against public policy or in violation of the law. Here, the purpose of the trust might be argued to avoid equitable distribution of the marital estate, which would be against public policy, and it should be voided and the property revert to the status quo ante.

The problem with that is the underlying divorce. With this line of argument, however, wouldn't mom have claim to 1/2 the funds?
 

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