Common Trust Contest Scenarios in Virginia: Grounds, Deadlines, and Trustee Disputes
Date: May 6, 2026
As a general matter, a trust is a fiduciary relationship with respect to property. Trusts normally come in the form of a written instrument, although it is possible to have an oral trust. A trust instrument is a legal document creating a trust, which typically sets forth the terms for the handling and disposition of trust assets. Common trust terms typically include the identification of the trustee and successor trustees, the identification of beneficiaries, the terms regarding the disposition of assets, the parameters for the payment of principal and income, and the trustee’s powers. A person may revoke or amend a revocable living trust, or even execute a new revocable living trust, as they deem fit.
Similar to will contests, which we have written about previously, and lawsuits challenging beneficiary designations, pay-on-death designations, and transfer-on-death designations, trust contests often arise when family members believe that a person’s trust, or an amendment to the same, does not reflect the true intentions of the trust settlor (maker of the trust) or that someone exerted undue influence on the trust settlor. Trust contests can come about when a person creates a new trust, revokes a trust, or makes a change to their trust shortly before their passing, particularly when the person is elderly, ill, or suffering from diminished faculties.
Trust contests often arise when close family members, such as siblings, are suddenly disinherited or written out of a trust in favor of another person. Sometimes that person is someone upon whom the trust settlor is dependent for assistance with daily living tasks, transportation, or financial management. Trust disputes can arise when family members are disinherited in favor of the trust settlor’s neighbor or friend. Trust contests can involve formerly estranged family members of the trust settlor “re-establishing” a relationship with the trust settlor shortly before their passing and while they are seriously ill.
If you are faced with a dispute involving the validity of a trust in Virginia and have questions about grounds for contesting, deadlines, or other trustee disputes, you should consult with an experienced estate dispute lawyer to determine potential options in a trust contest.
Common Grounds for a Trust Contest
- Lack of Testamentary Capacity – Under Virginia law, a person must have testamentary capacity to create, amend, revoke, or add property to a revocable trust. The standard to make a revocable trust is the same as the standard to make a will.
The Supreme Court of Virginia has noted that “Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid. If at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient.” Thomason v. Carlton, 221 Va. 845, 852, 276 S.E.2d 171, 175 (1981). Furthermore, “A less degree of capacity is requisite for the execution of a will than for the execution of contracts and the transaction of ordinary business.” Parish v. Parish, 281 Va. 191, 198, 704 S.E.2d 99, 103 (2011).
This means that the person must understand the nature of their property, their family relationships, the meaning of making a will and how they wish to dispose of their property.
If a person lacks testamentary capacity, then the revocable trust can be invalidated. Notably, testamentary capacity is a lesser standard than “contractual capacity”, or the capacity required to enter into contracts.
If illness, dementia, or incapacity prevented the person from having testamentary capacity, the revocable trust may be challenged. In Virginia, trust contest lawsuits involving an allegation of lack of testamentary capacity typically involve substantial investigation and discovery (which we discussed in a prior post) about the person’s medical, mental, and physical condition. Medical providers can be crucial witnesses, as can lay witnesses such as neighbors and friends.
- Undue Influence – The Supreme Court of Virginia has noted that “The undue influence which will vitiate a will must be of such a character as to control the mind and direct the action of the testator. It must be sufficient to destroy free agency on the part of the ... testator; it must amount to coercion—practically duress.” Parson v. Miller, 296 Va. 509, 526, 822 S.E.2d 169, 178–79 (2018).
When undue influence has been exercised upon a trust settlor, the trust can be challenged. Undue influence can occur when someone manipulates, threatens, or pressures the trust settlor into making or changing a revocable trust for their benefit.
In Virginia, a contestant alleging undue influence must establish the claim by clear and convincing evidence. Importantly, in the will and revocable trust context, a confidential relationship between the settlor and a beneficiary does not by itself create a presumption of undue influence. However, when a confidential relationship exists, and the beneficiary was active in procuring the instrument, the surrounding circumstances can give rise to a presumption. See Martin v. Phillips, 235 Va. 523, 369 S.E.2d 397 (1988).
- Fraud or Forgery – If a signature was falsified or the trust settlor was misled about what they were signing, the trust can potentially be challenged.
- Improper Execution – Trust instruments can contain express requirements for amendments and revocations. The Virginia Code permits amendments to or revocations of revocable living trusts by substantial compliance with a method provided in the trust’s terms, or, if the terms of the trust do not provide a method, by a method manifesting clear and convincing evidence of the trust settlor’s intent.
Strict Deadlines for Trust Contests in Virginia
In Virginia, trust contests are governed by strict deadlines that require parties’ lawsuits to be filed within specific time periods. Each ground for a trust contest has different elements.Under Va. Code § 64.2-750, a judicial proceeding contesting the validity of a revocable trust must be commenced by the earlier of:
- One year after the trust settlor’s death, or
- Six months after the trustee sends the contestant a copy of the trust instrument together with a statutory notice identifying the trust, the trustee, and the time allowed to commence a proceeding.
Each ground for a trust contest also has different elements and proof requirements.
Breach of Fiduciary Duties by a Trustee
While not a direct challenge to the validity of the trust itself, beneficiaries may contest the actions or omissions of a trustee in administering a trust. Trustees in Virginia have a fiduciary duty to act in the best interests of the beneficiaries.Common scenarios in which a beneficiary may allege that a trustee breached his or her fiduciary duty include:
- Mismanagement or misuse of trust assets
- Failure to provide required accountings
- Self-dealing or conflicts of interest
In these situations, beneficiaries may be able to seek relief from a court, including the award of monetary damages and the removal of the trustee.
If you are facing a trust dispute in Virginia, including a dispute involving a trustee’s breach of fiduciary duties, you should promptly consult with experienced trust dispute counsel.
Frequently Asked Questions About Trust Contests in Virginia
Who has standing to contest a trust in Virginia?Standing generally belongs to a person whose financial interest is directly affected by the outcome. That typically includes a beneficiary whose share is reduced or eliminated by the challenged trust or amendment, a beneficiary under an earlier trust instrument or amendment whose interest would be restored if the later instrument is invalidated, and an heir who would inherit if the trust fails and assets pass through the settlor’s estate. While the settlor is alive and the trust remains revocable, Virginia law makes the trustee’s duties run exclusively to the settlor (Va. Code § 64.2-749), so post-death contests are the more common posture.
What is the burden of proof in a Virginia trust contest?
It depends on the ground asserted. Lack of testamentary capacity is generally proved by a preponderance of the evidence in a revocable trust contest, applying the will-capacity rule. Undue influence and actual fraud must be established by clear and convincing evidence. Forgery claims are also subject to a heightened evidentiary showing, particularly where the instrument is regular on its face. The contestant carries the burden of proof in each scenario; in the revocable trust setting, a confidential relationship alone does not shift the burden, although it can be powerful corroborating evidence.
Are no-contest clauses in Virginia trusts enforceable?
Yes. Virginia enforces no-contest (in terrorem) clauses in trusts and wills under Va. Code § 64.2-715, but Virginia courts strictly construe them because they work a forfeiture. Whether a particular lawsuit will trigger forfeiture depends on the exact wording of the clause and the nature of the claims asserted. Some clauses reach only direct attacks on validity, while others sweep in trust-construction or interpretation suits. Importantly, Virginia does not recognize a general “probable cause” exception that would protect a contestant who brings a good-faith challenge. Anyone weighing a contest of a trust that contains a no-contest clause should obtain a careful read of the clause from experienced counsel before filing.
Can I challenge a trust amendment without invalidating the entire trust?
Yes. A trust amendment is itself an instrument that must satisfy the requirements of capacity, freedom from undue influence, freedom from fraud, and proper execution. If only a particular amendment is invalid, for example, the settlor lacked capacity at the time the amendment was signed but had capacity when the original trust was executed, then a Virginia court can set aside the amendment while leaving the underlying trust in force. The practical effect is that the trust assets pass under the most recent valid version of the trust.
What relief can a court award for a trustee's breach of fiduciary duty?
Virginia courts have broad equitable authority over trusts. Under Va. Code § 64.2-808, available remedies in a successful breach-of-trust action can include monetary damages to make the trust whole, disgorgement of profits the trustee obtained through self-dealing, surcharge of the trustee’s commissions, removal of the trustee, the appointment of a successor trustee, and injunctive relief governing the trustee’s future conduct. The specific remedy depends on the nature and severity of the breach and the harm caused to the beneficiaries.
About Whiteford's Trust Contest Attorneys
Whiteford offers sophisticated, experienced counsel on estate, trust, and fiduciary dispute matters, including will contests, challenges to beneficiary designations, and pay-on-death and transfer-on-death designation disputes.
When a will contest is on the horizon, the stakes are personal, and the legal questions are complex. Whiteford’s Estates, Trusts, & Fiduciary Litigation Practice Team in Richmond, Virginia, helps executors, trustees, heirs, and beneficiaries navigate these disputes, from early warning signs through trial. Our attorneys handle claims involving undue influence, fraud, lack of testamentary capacity, breach of fiduciary duty, and contested transfers of assets, as well as guardianship and conservatorship proceedings and will and trust interpretation.
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Brett is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. He also handles guardianship and conservatorship proceedings, including both routine and contested matters. Brett has been recognized as a Virginia Super Lawyers "Rising Star" and named Best Lawyers in America® Ones to Watch in Trusts and Estates. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Greg is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. His practice extends to will and trust interpretation, guardianship and conservatorship matters, and power of attorney disputes. Greg holds a Best Lawyers in America® distinction in Trusts and Estates. Greg can be reached at GBean@whitefordlaw.com and (804) 977-1241.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.