The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.
The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant’s argued that the plaintiff’s complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. “In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will.” The probate court agreed with the defendant’s and dismissed the probate suit with prejudice.
The Fourth District Court of Appeals reversed the probate court’s ruling, even though the language of the appeal suggested that the Court agreed with the defendant’s reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.
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