Alan recently scored a substantial victory in a highly contentious will contest.

Alan’s client was one of two children of the decedent.  The decedent and her husband each signed wills and trusts in 1998;  in those documents they left their estate in even shares to Alan’s client and her brother. In 2012,  the decedent dramatically amended her will so as to leave the large share of her estate to Alan’s client. In making this change the decedent used the same attorney as she and her husband had used to prepare their original estate plans.

The decedent died in 2018,  and when the daughter brought a proceeding to probate the will.  The son filed an objection, claiming that the decedent lacked sufficient mental capacity when she signed the will and was unduly influenced by the daughter to change it.

The case was  vigorously—even ferociously litigated. The case proved tricky for two reasons. First,  the decedent had taken a nasty fall about a month prior to changing the will, and was hospitalized  for nine days and then in rehab for two weeks thereafter;  medical records suggested that she had suffered a traumatic head injury as a result of the fall.  Secondly, the decedent’s attorney admitted in his deposition that he did not review the will with the decedent, but that he had merely observed her reviewing it.

Nonetheless, Alan believed there was a decent chance of knocking out the undue influence claim, and ultimately filed something known as a motion for summary judgment as to that claim.

The court allowed the motion.  In its decision the court noted that the decedent’s attorney had a longstanding relationship with her, and that “there is no evidence that [he] provided anything other than independent counsel in the preparation and execution of the 2012 will.” The court noted that counsel had observed the decedent reviewing the will provisions for 20 minutes and that during their meeting the decedent had provided a reason for wanting to exclude her son from the new will.

Challenges to a will based on undue influence can be difficult to win where the same attorney who drafted a prior will has drafted a new will.   One of the required elements of proof in an undue influence case is that the person who benefitted from a change in the will had the opportunity to exercise undue influence.  Massachusetts courts have made clear that the presence of “independent counsel” generally negates that element.

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