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3 Challenges to Wills in Massachusetts

Posted by Stephen McDonough | Jun 29, 2016 | 0 Comments

Signing a document
There are ways to challenge a will in Massachusetts

Challenging a will is meant to be a serious and in depth process, because when a person signs a will, they mean it to stand as the last instructions for the distribution of their assets. Contesting a will is done in the Probate Courts of Massachusetts, and the challenges will fall into three major categories.

1. Mistake by the Testator/Mistake(s) in Execution

The statute in the state of Massachusetts that deals with the execution of wills, M.G.L. ch. 19oB, sec 2-502, provides the checklist for a properly executed will. These elements include that a will is

  • Actually in writing
  • Contains a signature from the testator or a properly directed second
  • Contains the signature of at least two other witnesses that are deemed competent

Possible mistakes that may cause a will to be challenged may include a will that is not signed by the testator or two competent witnesses  or the complaint that a testator did not have knowledge that he or she was signing a will.

If any of these mistakes are made within the contents of the will, a challenge may be initiated, in most cases because of a natural heir who was intentionally omitted. The party presenting to the Massachusetts Probate Court has the responsibility of proving that the will was properly executed in the face of a challenge.

2. Incapacity

A challenge can be made based on the mental capacity of the testator at the time that the will was signed. There is always a legal presumption that a testator is of sound mind when the will is initially executed, and the person who is bringing the challenge has the burden of proof to show otherwise.

A person signing a will is considered incompetent or incapacitated if he or she does not understand the size of the estate mentioned in the will or know who the natural heirs to that estate are. The testator does not have to necessarily adhere to any particular plan of distribution, so claims of incapacity from a natural heir who has been purposefully left out by the testator is not a valid claim.

3. Undue Influence/Fraud

If the contents of the document have been changed since the original execution by a third party without the knowledge of the testator, there may be a challenge of fraud. Undue influence is a separate but related challenge that states the free will of the testator was coerced to the benefit of an individual who is now benefiting from the current iteration of the will.

The health and the age of the testator are considered in cases of undue influence and fraud. The relationship of the person who is allegedly exerting pressure on the testator will also come into question, as well as the opportunity that person had to exercise any undue influence. As with the other challenges, the person who is making the challenge has the burden of proof to show that the will is the result of undue influence or fraud.

An Affidavit Objection

The “affidavit of objections” is the official court filing that is signed under penalty of perjury as a challenge to the present state of a will. This is the document upon which the challenge is based, and great care must go into its preparation for the person bringing the challenge to be taken seriously in court.

This affidavit can be filed by the person making the challenge or by people with personal knowledge of facts that are pertinent to the challenge that is being brought to court. Affidavits must contain factual evidence supporting the claim, and general claims will most likely be dismissed in Massachusetts.

No matter the claim that is being made, the description within the affidavit must be very specific when describing the situations, people, and conditions that produced a will that does not coincide with the wishes of the testator.

If you have questions about wills in Massachusetts, please don't hesitate to contact us.

About the Author

Stephen McDonough

Stephen works closely with clients facing divorce or other family conflict. He is a certified mediator through the Massachusetts Council on Family Mediation, a designation that only about 11% of mediators have obtained. In addition to providing mediation services, Stephen regularly appears in...

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