Attorney at Law
Litigation Specialist
60 William Street
Suite 300
Wellesley, MA 02481
617.332.3456
alan@lawfang.com

The Burden of Proof – Challenging a Will or Trust in Massachusetts

There are not many circumstances under which someone would normally challenge a will or a trust. But if you are a beneficiary, an heir, or another interested party and you are concerned about the validity of the documents pertaining to an estate matter or are worried the document content does not accurately reflect the intent of the person who wrote it, a will or trust contest may be a good option for you.

The burden of proof falls on you when contesting a will or trust based on lack of mental capacity. So what kind of proof is necessary? In Massachusetts, a will is only valid if it is a written document, signed by the person who created it, and signed by two witnesses. A trust is valid when written, signed in front of a notary public, and when the property has been transferred to your name as trustee. The person who wrote the will or trust must be eighteen years old and of “sound mind.” If you believe the person was not of “sound mind” and have proof to back up your claims, you can challenge the execution of the trust or will.

Gathering evidence may mean discussing the mental state of the decedent or settlor with their physician or other professionals to call on their testimony, or using a video recording (if one was made at the time of the document signing) or any other documentation to prove he or she did not understand the nature of the document at the time of signing, did not grasp the whole value of their property, or was unable to properly identify the benefactors.

When contesting a will, once you have received notification that the will has been filed for probate, you can file a notice of appearance to begin the challenge process. There is a deadline you must meet in order to contest, so be sure to read over your citation carefully to find the return date. Your notice must be filed before then!

When the notice has been filed, you have thirty days after the return date to submit an affidavit of objections, which is a statement as to why you believe the will to be invalid. Your reasoning must be provable, or your case could be dismissed! So be sure to do your research.

Challenging a living trust in Massachusetts is different from challenging a will. To contest a trust, you must file a lawsuit in the Probate or Superior Court. Living trusts are complex documents which require an even higher level of testamentary capacity than a will. In essence, a trust is a contract and thus the settlor must have the required capacity to create a contract, which could make allegations of mental incapacity harder to prove.

Whether you’re interested in challenging a will or a trust, whatever your reasoning may be, it is important to consult with an attorney about the plan of action best for you. Remember: A successful challenge hinges on timing, awareness, and expertise!