Protecting Your Interests in Trust Litigation

Trust Litigation in New Jersey

Is there a fight in the making about a trust?  Every day claims are made against trusts and trustees for many reasons. Perhaps the trustee is being unreasonable in the way he or she is administering and/or managing the details of the trust to the detriment of the named beneficiaries. Then there are creditors and/or predators trying to pierce the trust so they can execute against the corpus and seize the funds meant for beneficiaries.  Can these creditors be stopped?

Perhaps a claim is being made that the trust’s creator was not competent at the time he or she signed the trust document and/or when he or she moved their money and property into the trust? These are just a few examples of the types of claims often asserted against trusts, but there are many more.

The issues that trust beneficiaries and trustees may confront are many and diverse. You need someone with strong trust law experience who has handled trust issues on behalf of both beneficiaries and trustees inside and outside of the courtroom. Relax, you’re at the right place and Fredrick P. Niemann and the members of Hanlon Niemann & Wright are the right trust law attorneys for you. Chances are Mr. Niemann or a member of the firm has dealt with your trust issue countless times before. Mr. Niemann and staff have written hundreds of trusts for clients and litigated trust cases before the courts throughout New Jersey.

Defending Yourself as a Trustee Against Beneficiaries and Others

Client Testimonial

I knew I needed an attorney, but could I afford one? Would he or she be experienced and someone I could trust and talk to openly and in confidence?
I was referred to Fredrick P. Niemann. I was warmly greeted and my appointment promptly kept. I was given all the time I needed to ask questions and talk about my needs and concerns. I was quoted a fee that was appropriate and reasonable for my matter. My attorney gave me answers and advice. He was a counselor at law and in life. Calling Fredrick P. Niemann was the right decision.

—Nick Alfano, Morganville, NJ

Challenging the Trustee of a Trust in New Jersey



The fact that a person creates a trust does not guarantee that the trust will be managed and trust property distributed according to the express terms of the document. A court will generally provide an opportunity for individuals to object to the trust, and a challenge may be brought by anyone who feels the trust is inaccurate or invalid. These types of cases are often difficult and emotionally charged, so it is important to find an attorney with whom you feel comfortable and who is knowledgeable about such proceedings.

At Hanlon Niemann and Wright, we have significant experience in resolving tough trust disputes. We are experienced trial attorneys with an extensive background in trust, estate law and probate law. In most disputes involving a trust, we first try to mediate the disagreement in a practical and responsible way, preferring mediation and conciliation where possible consistent with our client’s rights, goals and instructions. If unsuccessful in this approach then it’s off to court. We’ve got your back.


Frequently, beneficiaries object to even the best made trusts and conflicts can arise before or during the administration of the trust. There are many types of trust disputes that can develop. Here are a few examples:

Everyone has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else. Yet it is still possible, to set aside a trust if you have a lawful reason. A person contesting a trust based estate plan must prove that at the time the documents were signed, the trust maker lacked the mental capacity (meaning “an understanding of what he or she was signing), or that the trust was procured as the result of undue influence, fraud or duress. Also, some trusts are invalid because they were not properly executed. For example, a trust must be signed, (except for a holographic trust written in the handwriting of the settlor, who is the person creating the trust). If witnesses signed the trust after the fact and did not actually see the person sign the trust, then the trust may be challenged as invalid.

When this happens, if there is a valid prior trust or Last Will, the court will go back to the earlier document and distribute the decedent’s assets in the manner the earlier documents mandate. If there is no valid prior trust or Last Will, then the decedent’s estate and/or trust assets will pass to beneficiaries as if he or she died without a trust at all. This is called dying “intestate”.

Sometimes a trust will contain a “no contest” clause designed to discourage lawsuits and courtroom battles. This means if you are a beneficiary and you contest the validity of a trust and you lose, you may be excluded from the trust because of the no-contest clause.  Many no contest clauses are unenforceable in NJ, but some are. The case must be carefully evaluated.


I was in a panic. My fiancée passed away and I was named as a beneficiary of a valuable piece of real estate in Hudson County, New Jersey under his Will. Adding to my grief was the decision of the Executor to ignore the language of his Will and then he refused to convey ownership of the real estate to me.

What were my rights? What could I do? I called various people for a referral to an attorney experienced in probate litigation. Mr. Niemann was recommended to me and immediately he took charge. He filed a lawsuit against the Executor and aggressively fought for me throughout the legal process. He would not compromise or settle for less than I deserved under the Will. A trial took place and Mr. Niemann tried the case for me to the end. He was prepared and his office and associates offered tremendous assistance to me and Mr. Niemann in getting the case ready for trial.

Today, I am the owner of the property my fiancée intended for me to have. I cannot say enough good things about my experience with Mr. Niemann and his very capable office.

—Noreika Sanderson, Weehauken, NJ and New York City, NY


Trustees owe a fiduciary duty to the beneficiaries of the trust. A fiduciary duty means a duty of good faith and fair dealing, and a duty of diligent service to the trust. A fiduciary must always consider the best interests of the trust before his or her interests. When a trustee wrongfully profits from his or her position, they have breached their fiduciary duty. A failure to safeguard trust assets that causes a loss of economic value to beneficiaries is a breach of fiduciary duty. The beneficiaries damaged as a result can file a legal action against the trustee. Under some circumstances, the trustee can be held personally liable for the loss.



Trustees have a duty to keep all trust property separate and identifiable, and to account to the beneficiaries for all monies coming into and going out of the trustee’s hands. If the trustee fails to provide a proper accounting, the beneficiaries can file a petition seeking a court order compelling the trustee to do an accounting. Trustees who fail to properly account for their actions may be removed by the court. An accounting however can be waived if all of the beneficiaries agree to waive such an accounting. Sometimes that makes sense, sometimes it doesn’t.



Frequently, people make promises they never keep. Some of these promises relate to trusts, such as what a parent verbally promises their child upon their death. When a promise isn’t fulfilled, it is possible in NJ to enforce what the courts call a “Contract to Make a Trust.”

As a general rule, agreements to make a gift of property after death must be in writing. If it is not in writing, such agreements are often unenforceable, but not always. There is, one exception to this rule and that is where the person to whom the promise was made changed his or her position in reliance upon the promise and suffered economic detriment as a result when the promise was not fulfilled.

Here is an example to illustrate when a Breach of Contract to Make a Trust in NJ this would apply:

Mom promises to one of her daughters that if she moves in and cares for her at home for the rest of her life, then that daughter will inherit the home. The daughter agrees. She gives up her job, sells her home and takes care of her mom around the clock for two years, giving up opportunities for employment and a social life. But after Mom’s death, the daughter discovers that her mother’s revocable trust divides the entire estate, including the home between all six children. In this case, the daughter may have a valid claim against her mother’s estate for a breach of contract.


After reading this page do you think time spent with Fredrick P Niemann Esq., will be helpful? If so, and to speak with an experienced, knowledgeable trust dispute and will contest  attorney, call Fredrick P. Niemann toll-free at

(855) 376-5291

or email him at to set up a consultation at your convenience.  He is easy to talk to, very approachable and will explain your options in plain, simple English.