The start of a new year is a great time to look forward and predict upcoming trends in estate litigation for 2018. First, it is incredibly likely that the overall volume of estate litigation will increase. As our society ages and passes down more wealth than any other time in human history, the potential for lawsuits continues to grow. Second, the continual inclusion of arbitration clauses in wills and trusts will increasingly serve as the basis of litigation as executors and trustees invoke them to compel binding arbitration. Those opposing these clauses argue that they are void under the Uniform Trust Code, void against public policy, and should not have the power to bind beneficiaries who were never in a position to agree to the arbitration terms. Third, in terrorem, or no-contest clauses, will expand in both breadth and scope. Over the past decade, estate planning attorneys have included broader no-contest clauses in an effort to prevent contests involving beneficiary designations, claims against an executor or trustee for breach of fiduciary duty, and actions that retard the administration of an estate or trust. Finally, the mandatory and default rules under the Uniform Trust Code will be expounded as estate planning attorney’s attempts to limit certain fiduciary duties infringe upon state laws.
See Will Sleeth, 4 Estate Litigation Predictions For 2018, Financial Advisor, February 14, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
