What Action Constitutes a Contest of a Trust | Estate Planning Newsletter

In the case of Rogoish Revocable Living Trust, the Court of Appeals dealt with the issue of what action constitutes a contest of a trust (which is effectively the same as a contest of a Will) and whether a “No Contest Clause” in the Trust would apply. In the Rogoish case, one of the beneficiaries of the Trust filed a Petition in Court for an accounting of the Trust and removal of the Trustee. The Trustee answered and raised a defense that Ms. Rogoish violated the Trust’s No Contest Clause.

The Court analyzed the no contest statutory provisions in the Uniform Trust Code (TCA 35-15-1014) and explained in detail what constitutes a contest and the exceptions to a trust contest for probable cause.

The Court explained that the statute was included in the Tennessee Uniform Trust Code in furtherance of its overriding policy and goal in carrying out a Settlor’s intent, as well as providing Settlors with the freedom to dispose of their assets to whom and in the manner they wish all to the greatest extent constitutionally allowable.

In spite of the explanation of the no contest clause under the Uniform Trust Code, the Court held that Ms. Rogoish’s actions were not a contest of the Trust, but simply a request for an accounting.

Ms. Rogoish’s Petition did not make a claim of undue influence, fraud, menace, duress, or lack of testamentary capacity.  The Petition did not seek to obtain an adjudication that the document was void or otherwise sought to be set aside. The Petition challenged the validity of the Trustee’s accounting and requested that a more detailed accounting be provided to Ms. Rogoish. As such, the Court ruled that the Petition for an accounting was valid and that it did not violate the No Contest Clause.

My Recommendation. No Contest Clauses are frequently used, and they have a worthwhile purpose. However, there are exceptions under both statutory law for trusts and common law (case law) for Wills. Simply asking for an accounting is not a contest.

Yours very truly,

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr., Attorney at Law