Contesting or Defending a Will in Massachusetts

by Matthew Karr, Esq. on July 26, 2011

When a Will is filed for Probate in Massachusetts there are certain requirements that must be met.  One such requirement is that all potential heirs and creditors must be notified that the Will has been filed.  This gives interested parties an opportunity to become involved in the Probate process and, if warranted, file a Will contest if they feel their interests have been harmed or that the Will was not proper.

How to File a Will Contest


When a Massachusetts Will has been filed for Probate, the Court provides a legal notice (called a “Citation”) that must be sent to all heirs at law and published in a local newspaper where the Decedent lived.  The Citation will specify a deadline (the “Return Date”) by which any person objecting to the Will must file a Notice of Appearance.  If the party objecting to the Will (the “Contestant”) fails to do so, their ability to object to the Will may be waived.

Once the Notice of Appearance has been filed, the Contestant must then file an “Affidavit of Objections” within thirty days of the return date.  The Affidavit is a witness statement, subject to the penalties of perjury, which sets forth facts based upon the Contestant’s personal knowledge that, if proven, would invalidate the Will.

The most common grounds for invalidating a will in Massachusetts are (1) improper execution of the will; (2) lack of testamentary capacity of the testator; or (3) undue influence exercised by a third party over the testator.  These standards can be difficult to meet, since the law prefers a valid will over resorting to intestacy.  If the Contestant’s Affidavit is not carefully drafted the Will contest may be dismissed.  Therefore, it is strongly recommended that the Affidavit be drafted by an attorney experienced in Massachusetts Will contests.  If the Affidavit is legally sufficient the Will contest may move into formal litigation.

Defending a Massachusetts Will Contest


Will contests can be lengthy, costly, and emotionally draining.  For these reasons, it is generally preferable when defending against a Will contest, to have the case dismissed on procedural grounds rather than proceeding through formal litigation.  Possible grounds for dismissal of a Will contest include where a required document was not timely filed by the Contestant or where an Affidavit of Objections fails to sufficiently support the Contestant’s claim.  In these instances, a motion can be brought by the defense to have the case dismissed.  If a Will contest does move forward to litigation, the parties are often both motivated by time and cost to reach a settlement or to negotiate a formal Will Compromise prior to trial.  In either case, having an experienced attorney on your side can add invaluable insight and leverage to your negotiations.

How to Avoid Contests to Your Will


No one wants to think that their family will be left to fight over their Will once they have passed, but such things do happen and they can cause a lot of emotional and financial pain.  If you sense that a Will contest could be likely or if you have a complicated distribution plan due to blended families, multiple marriages or wishes for unequal distributions or disinheritances, you should consider having an In Terrorem Clause (also called a no-contest clause) drafted into your Will.  An In Terrorem Clause provides a disincentive for Will contests by automatically disinheriting any person who files a Will contest.  Although a Will Contestant could still benefit if their claim is successful, the threat of losing any bequest or benefit already provided for them in the Will is often enough to stop a beneficiary from challenging the Will.

Another strategy that can help minimize the potential of a Will Contest is to openly communicate with your heirs about how you want your legacy to take shape.  Similarly, your estate’s executor should communicate with the heirs and keep them apprised of all probate proceedings.  Open and honest communication can be the best way to prevent the jealousy and suspicions that can give rise to a Will contest.

If you or your loved one are dealing with the issues surrounding Wills and Will contests in Massachusetts, call my office and we will be glad to provide answers to your questions.

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