A common motivation for creating an estate plan is so that loved ones aren’t faced with any real surprises during the probate of an estate. What happens though if you learn that a recently deceased loved one made a death bed Will at the last minute and that new Will modified the terms of his/her previous Will? Is that deathbed Will valid? Can you contest the Will? The North Andover estate planning attorneys at DeBruyckere Law Offices discuss contesting a deathbed Will in Massachusetts.
What Is a “Deathbed” Will?
For most people, a Last Will and Testament serves as the foundation of their estate plan. A Will can distribute a Testator’s entire estate and allows the Testator to decide who will oversee the administration of the estate. Given the important nature of a Will, it should ideally be created under the guidance of an experienced estate planning attorney. Sometimes, however, an individual purports to create what is referred to as a “deathbed” Will.
Just as the name implies, a death bed Will refers to a Will that is written down and executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent. It may be that the Testator doesn’t have a Will and doesn’t want to die without one. In that case, the deathbed Will serves as the only Will ever created by the Testator. It may also be the case though that a death bed Will revokes a previously executed Will. When this is the case, it often leads to someone challenging the Will because the deathbed Will disinherits a previous beneficiary and/or makes a significant gift to an unexpected beneficiary.
Can I Contest a Deathbed Will?
If you learn that a family member or close loved one created a deathbed Will, can you contest that Will? To answer that question, you need to ask several other questions.
- Do you have standing? “Standing” is a legal term that refers to your right to bring a legal action. In this case, you must be an “interested person” to initiate a Will contest. Typically, that means you must be a legal heir to the estate, a beneficiary in the current or a previous Will, or a creditor of the estate. If you have standing, you have the legal right to challenge the Will.
- Is a deathbed Will ever valid? In short, yes it can be. In Massachusetts, a handwritten Will may be valid if all other legal requirements are satisfied, including proper execution and the requirement that the Will be witnessed by at least two people. An oral Will (legally referred to as a “nuncupative” Will) is only valid in Massachusetts when made by a soldier on active duty or a mariner at sea making their wishes known.
- Do you have the legal grounds to contest the Will? Because a deathbed Will is not invalid on its face, you will have to have legal grounds on which to invalid the Will.
The most common grounds used to contest a deathbed Will are incapacity and undue influence. To prove lack of testamentary capacity, you prove that the Testator lacked the ability to understand the value or nature of the assets involved, failed to recognize who should receive those assets, and did not understand the ramifications of creating the Will. Being near death will not be sufficient to prove lack of capacity. Proving undue influence requires you to prove that the Testator was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not his/her own.
Contact a North Andover Estate Planning Attorney
If you have additional questions or concerns, please contact a North Andover estate planning attorney at DeBruyckere Law Offices by calling our New Hampshire office at (603) 894-4141 or our Massachusetts office (978) 969-0331 to learn more or visit our website at http://dadlawoffices.com .
In Massachusetts, the grounds on which a Will may be declared invalid include subsequent valid Will exists; undue influence over the Testator; fraud; and incapacity of the Testator.
You are not legally required to hire an attorney; however, a Will contest can be a lengthy and complex process that is best undertaken with the assistance of an experienced attorney.
The court will look for a previous valid Will. If none exists, the state intestate succession laws will apply.