Estate and Trust Litigation

Nobody wants to be involved in a lawsuit, especially after a personal loss. But if litigation is necessary, we’ll help you resolve the dispute in the most advantageous way, with experienced counsel and assertive representation.

At the Whelihan Law Firm, we provide experienced litigation counsel to executors, trustees and beneficiaries involved in disputes pertaining to wills, trusts and related litigation. Tom has represented institutions and individuals in a variety of litigated matters at the trial and appellate levels, including insurance carriers, product manufacturers and distributors, leasing companies, commercial property owners, realtors, insurance brokers, and home inspectors. Early in his career, Tom was a litigation attorney with a major insurance company and later managed the litigation department of a publicly-traded leasing company.

Tom’s litigation practice focuses on contested probate matters, including litigation involving estates, trusts, disputed guardianships, and actions involving claims of malfeasance on the part of fiduciaries. The firm has experience litigating will contests, actions involving deviation from administrative provisions of trusts, elective share issues, cases involving claims of breach of fiduciary duty, undue influence, diminished capacity, contested guardianships, actions involving charitable trusts and cy pres matters, and related disputes.

On what grounds can a will be contested?

There are well-defined rules for commencing a challenge to a will, and the procedural requirements, some of which are time-sensitive, must be carefully followed. A will cannot be set aside simply because it is unequal or unfair. Specific grounds exist under the law to contest a will — if, for example, the document does not comply with the formal requirements of form and execution, the will was revoked, or the person making the will lacked the mental capacity to do so. The most common basis for contesting a will is that it is the product of undue influence. Proof of undue influence is often difficult. combination of factors, including the relationship between the testator and the person alleged to have exerted undue influence, as well as the circumstances under which the will was signed, must be carefully analyzed to determine whether the will was in fact the product of undue influence.

What is a breach of fiduciary duty?

The term “fiduciary” includes executors, administrator of intestate estates, guardians, trustees and others charged with the legal responsibility of acting in a position of trust on behalf of another. The law spells out the powers and duties of fiduciaries. A court is empowered to remove a fiduciary from his position for cause. For example, the removal of an executor or trustee may occur when he or she has neglected or refused to perform required duties, or when the assets of the estate or trust have been wasted, misapplied or embezzled.