Will and Trust Challenges in Nebraska, Colorado, and Iowa: How to Contest or Defend an Estate Plan
By Grant Paschke, Associate Attorney, Smith Pauley LLP
Will and Trust Challenges in Nebraska, Colorado, and Iowa: How to Contest or Defend an Estate Plan
Introduction
Challenging or defending an estate plan is a complex process shaped by detailed legal standards and strict procedural rules. In Nebraska, Colorado, and Iowa, common claims like lack of capacity, undue influence, fraud, improper execution, or revocation each require specific evidence and careful strategy. This overview explains the most frequent grounds for contesting wills and trusts in these states, summarizes key statutory procedures and deadlines, and outlines practical steps both for bringing a challenge and for protecting an estate plan from future disputes.
Common Grounds for Will and Trust Challenges
To contest a will, your cause of action must be rooted in one of the following:
Lack of testamentary capacity. To have testamentary capacity, the person writing the will must know what and how much property they have, the people who would inherit under the document, the fact that they are giving that property away, and how different aspects of their estate (assets, debts, beneficiaries, etc.) connect to express a clear, organized intention for how they want their property distributed after their death.
Undue Influence or Duress. To prevail on an undue influence cause of action, the testator must be susceptible to undue influence or domination by another; the wrongdoer must have had the opportunity to exert undue influence on the testator; the wrongdoer must have had motive to exercise undue influence for the purpose of obtaining a personal benefit; and the disposition or provision of the will is the either the result of undue influence or is unnatural.
To prevail here, the contestant must show both a confidential relationship and suspicious circumstances between the testator and wrongdoer. A confidential relationship doesn’t have to be secret; it exists when one party places significant trust or dependence on another, often due to factors like age, family ties, or a history of trust, such that this reliance controls the situation. Examples of suspicious circumstances include haste or secrecy surrounding the will; will procurement; isolation; lack of independent counsel; unnatural disposition; the donor’s attitude towards others changes by reason of relationship with the wrongdoer; seemingly unnatural, unfair, or unjust disinheritance of a deserving relative; weakened condition (physically, mentally or both); and dramatic departures from earlier wills.
Duress is when undue influence crosses the line into coercion. If the wrongdoer performed (or threatened to perform) a wrongful act that coerced the donor into making a transfer that the donor would not have otherwise made, then the document was procured by duress.
Fraud. Fraud is when a wrongdoer knowingly or recklessly makes a false representation to a donor about a material fact that was intended to, and did, cause the donor to make a donative transfer the donor would not have otherwise made.
Improper Execution. To have a valid will, the testator must be 18, have testamentary capacity, testamentary intent, and sign in the presence of two witnesses. The will must be in writing (typed, printed, or handwritten), have testator’s signature in the presence of two witnesses, and the two witnesses’ signatures signed in the presence of the testator.
To have a valid trust, the settlor must have the intent to create a trust, and the trust must have “res” (trust property) and ascertainable beneficiaries. The same person cannot be both the sole trustee and the sole beneficiary. If that is the case, the trust will be extinguished under the Merger Doctrine.
Revocation or Later Documents. Revocation requires the same mental capacity as execution. If the testator does not have valid mental capacity, then the document was invalidly revoked.
If the testator revokes their will based on the mistaken belief that another disposition of property is valid or effective—and but-for the mistake, the testator would not have revoked, then the court will ask: Is it closer to the testator’s intent to allow the revocation to stand and to pass property through intestacy, or is it closer to the testator’s intent to revive the original revoked instrument? Whichever is closer to the testator’s intent will govern.
Nebraska Law on Will and Trust Contests (§ 30-2429.01 – 30-2431)
To contest a will under Nebraska law, a party must file a petition in probate court to either set aside or prevent the will from informal probate. Alternatively, the party can object to the probate of the will. Once the objection is made or the petition is filed, then the originally scheduled hearing will be postponed 14 days.
The contestant must establish prima facie proof of undue influence, fraud, duress, mistake or revocation. The proponent of the will must establish prima facie proof of due execution, death, testamentary capacity, and venue. If the will is self-proving, then compliance with the signature and execution requirements is presumed unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. The contestant may rebut any of the presumptions. If a will is not self-proving, then at least one witness must testify as to the execution.
A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s death within the earlier of: one year after the settlor’s death; or 120 days after the trustee has sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, the trustee’s name and address, and the time allowed for commencing a proceeding. Common grounds for contesting a trust include: lack of testamentary capacity of the settlor, undue influence exerted on the settlor, and forgery or improper execution of the trust document.
Colorado Law on Will and Trust Contests (C.R.S. § 15-12-406, 407; 15-5-604)
To contest a will under Colorado law, a party must file a petition in probate court explaining the objection to the will and showing that they are an “interested party,” or someone with a relationship to the decedent who stands to take under the will.
The contestant must establish prima facie proof of undue influence, fraud, duress, mistake or revocation. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. If the will is self-proving, then the will satisfies the requirements for execution and no witness needs to testify unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. If the will is notarized but not self-proving, there is a rebuttable presumption that the will satisfies the execution requirements. If the will is witnessed but not notarized or self-proving, then at least one witness must testify as to the execution if the witness is within the state, competent, and able to testify.
A person contesting the validity of a trust that was revocable at the settlor’s death must commence the proceeding within the earlier of three years after the settlor’s death or 120 days after receiving a copy of the trust instrument and notice of the trust’s existence, the trustee’s name and address, and the time allowed for commencing a proceeding. This time limit is an absolute bar and cannot be waived or tolled. A trust can be contested on the basis of improper creation, lack of intent, or improper administration.
Iowa Law on Will and Trust Contests (Iowa Code § 633.308–312; 633A.3101, 3108–3110, 6202)
To contest a will under Colorado law, an interested person must file a petition in the probate proceedings explaining the grounds for the will contest. An action to contest or set aside the probate of a will must be filed within the later to occur of (1) four months from the date of the second publication of notice of admission of the will to probate or (2) one month following the mailing of the notice to the interested parties.
To contest a trust, the process differs depending on if the trustee published notice or not. If the trustee published notice, any action to contest the validity of the trust must be brought within the later to occur of four months from the date of the second publication of the notice or thirty days from the date of mailing of the notice. A person who is not entitled to receive a mailed notice or who does not make a claim within the appropriate period is forever barred from asserting any claim against the trust or the trust assets. If no notice is published or given within that period, the contest must be initiated no later than one year following the settlor’s death.
The Iowa Trust Code allows interested parties, including beneficiaries and trustees, to petition the court regarding the internal affairs of the trust, including its validity. An aggrieved party has the same causes of action and remedies as those available in a will contest.
Strategies for Contesting a Will or Trust
A party contesting the trust should be prepared with documentation supporting any of these claims, including medical, financial, and other relationship records. The party should take care to file formal objections or petitions within the statutory timeframes outlined above. It is imperative to retain probate litigation counsel.
How to Protect an Estate Plan from Challenges
When drafting an estate plan, make sure your attorney keeps diligent notes on the capacity of the testator or settlor. Cognitive assessments can also be done prior to an estate plan being made so that a more extensive record is created. Parties should avoid secretive meetings with their attorney or excluding close family from these meetings.
A no-contest clause can also be used to prevent beneficiaries from contesting a will or trust. In Nebraska, Colorado, and Iowa, these clauses are enforceable unless probable cause exists for instituting proceedings. See Neb. Rev. Stat. § 30-24, 103; Colorado Revised Statutes § 15-11-517).
Case Studies
In re Estate of Elliott, 993 P.2d 474, (Colo. 2000).
In this case, the personal representative wrongfully spent nearly all of the estate’s assets on herself. During a tense hearing, the probate judge ordered her to immediately return the money and, when she could not, held her in contempt and jailed her. The Colorado Supreme Court reversed, holding that a person cannot be held in remedial contempt for failing to do something that has become impossible — here, repaying funds that had already been dissipated. The court emphasized that even in cases of serious misconduct, probate courts must respect procedural protections and cannot use contempt powers to compel acts beyond a person’s current ability. This case highlights the practical fact that once money is spent, it is often not recoverable, and the person who wrongly spent estate funds is unlikely to have assets that can be recovered in a lawsuit.
In re Durschmidt Revocable Trust, 989 N.W.2d 207 (2022).
This case involved a beneficiary challenging a 2019 amendment to her father Randall’s revocable trust, claiming he lacked testamentary capacity and that his co-trustees (his sister and youngest daughter) exerted undue influence. Randall had amended the trust to give 40% to his sister, 25% each to his oldest and youngest daughters, and 10% to the middle daughter, who brought the challenge. The appellate court firmly rejected the contest, noting the only evidence presented was "suspicion and surmise." Medical testimony confirmed Randall understood his assets "to the penny," and there was no indication the co-trustees dominated or coerced him. Randall’s sister didn’t even participate in estate planning meetings. The court affirmed dismissal, emphasizing that speculative allegations aren't enough to undo trust amendments.
In re Estate of Barger, 303 Neb. 817 (2019).
In this Nebraska case, family members contested whether some of the beneficiaries had violated a no-contest clause by filing a claim against the estate’s personal representative. The beneficiary siblings who contested the will believed the personal representative had mismanaged funds, but the personal representative argued that merely filing the claim triggered the clause, disinheriting them. The Nebraska Supreme Court rejected the PR’s view, holding that a no-contest clause only applies when there isn’t probable cause to bring the challenge. Since the siblings had evidence of potential misconduct, the clause could not penalize them for pursuing it. The court reaffirmed that no-contest clauses should not be used to shield fiduciaries from legitimate accountability.
Conclusion
Whether you are contesting an estate plan or defending one, success depends on understanding the governing laws and acting within the prescribed timeframes. Proper documentation, timely legal action, and strategic planning, including using tools like no-contest clauses, can significantly influence the outcome. By staying informed of the distinct requirements in Nebraska, Colorado, and Iowa, individuals and families can better navigate the probate process and ensure that their true testamentary intent is upheld.
Whether you are the one planning your estate now, you are starting the process of handling the affairs of a loved one who has passed, or you find yourself in conflict over the assets of a parent who has recently passed, please give us a call to bring clarity and direction to your path forward.
Grant Paschke is an attorney with deep roots in Nebraska, having grown up on a family farm outside Aurora. His upbringing instilled in him a strong work ethic and a firsthand understanding of the legal and financial challenges that families and businesses face.
Grant began his legal career at the District Attorney’s Office in Colorado Springs, where he first-chaired eight jury trials. He then transitioned to representing school districts in litigation, including complex special education matters. Wanting to raise their family in The Cornhusker State, Grant and his wife left the mountains for the fields, where he continued practicing litigation for schools and businesses while expanding his work in estate planning, business transactions, real estate, and banking.
Now focusing on estate planning, business law, banking, real estate, and general business matters, Grant helps clients navigate complex legal and financial issues with practical, results-driven solutions. His background in both transactional work and litigation allows him to provide well-rounded legal counsel tailored to his clients’ unique needs. He has worked with business owners, financial institutions, and families to protect assets, structure transactions, and resolve disputes efficiently. His commitment to clear, common-sense communication ensures that clients receive effective legal guidance—whether they are planning for the future, growing a business, or managing risk.