When a loved one passes away, experiencing a range of strong emotions is normal. Learning the terms of the Last Will and Testament can also cause an emotional reaction that can lead to the desire to challenge the Will; however, you must have a valid legal reason to do so. To help you figure out if a Will contest is a viable option, the Beverly probate attorneys at DeBruyckere Law Offices discuss five signs that point to a Will contest.
What Does It Mean to Contest a Will?
A spouse, adult child, or other loved one may react negatively when they learn of the terms of a decedent’s Will if those terms are not favorable to them or are not what they anticipated. That may prompt a rush to challenge (known as filing a Will “caveat” in North Carolina) the validity of the Will. A Will cannot successfully be challenged, however, based solely on the fact that a beneficiary is not happy with the terms of the Will. To succeed in a Will contest in the Commonwealth of Massachusetts, a contestant must prove that the Will is invalid. To do that, you must prove at least one of the following legal grounds:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Improper Execution
Signs of a Problem
The legal burden to prove that a Will is invalid is on the person challenging the Will – and that burden tends to be a high one. Courts typically start with the presumption that a Will submitted for probate is valid, meaning you must present sufficient evidence to rebut that presumption. Some common signs that might lead to just such evidence include:
- Dementia or diminished capacity at the time of execution. Even an official diagnosis of Alzheimer’s or dementia at the time a Will was executed does not, by itself, invalidate a Will. It can, however, lead to a successful assertion that the Testator lacked the necessary capacity to execute the Will and, therefore, invalidate the Will.
- Recent changes. While it is not unusual for someone who does not have a Will to decide to execute one after learning they are close to death or facing a terminal illness, changes to an existing Will that occurred close to the Testator’s death can be suspect. They bring into question the Testator’s mental state as well as the possibility of undue influence when the Testator was particularly vulnerable.
- Third-party influence. If the Testator was under a legal guardianship, or you have reason to believe that someone was unofficially controlling the Testator’s finances and/or making decisions for him/her, it could provide the basis for a claim of undue influence. If the terms of the Will leave significant assets, or a substantial portion of the estate, to anyone who was directly involved in the creation of the Will, it could also be a sign that undue influence was exerted on the Testator at the time the Will was executed.
- Leaving out a spouse or child without explanation. A Testator has the legal right to disinherit or leave out anyone, including a spouse or child, when creating a Will. Doing so, however, without addressing the missing heir and/or providing an explanation can be suspicious and may indicate a lack of mental capacity or undue influence.
- Execution and technical signs. Like all states, Massachusetts imposes certain requirements on a Will for it to be valid. If the Will does not appear to meet the basic requirements for a valid Will, you may be able to successfully challenge the validity of the Will. For instance, is the Will in writing? Does it have an original (ink) signature? Was it witnessed? Does anything else about the document appear fraudulent or fake?
Contact Beverly Probate Attorneys
If you have additional questions or concerns, please contact the Beverly probate attorneys 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 .
- What Do I Do If I Received a Crummey Notice? - September 29, 2022
- The Intersection of Asset Protection Planning and Estate Planning – Part I - September 20, 2022
- If an Estate Owes Federal Gift and Estate Taxes, How Do I Pay Them? - September 15, 2022
