Alan Successfully Strikes Affidavit of Objections in Will Contest

Alan was recently successful in persuading the Norfolk County Probate Court to strike an affidavit of objections in a will contest,  thus ending the challenge to an amended will.

The challenging parties filed a lengthy affidavit, setting forth what they believed to be facts sufficient to raise issues for trial as to whether the deceased (a) had sufficient mental capacity to amend her will;  and (b) executed the will amendment as a result of the undue influence of Alan’s client.

Alan moved to strike the affidavit on several grounds, including (a) the fact that the allegations of his client’s conduct referenced conduct that allegedly occurred years after the will was signed;  (b) the allegations did not provide a link between the deceased’s medical condition and any inability to understand the disposition of her estate; (c) the affidavit did not specify actual conduct that amounted to undue influence; and (d) references to the deceased’s condition in hospital records constituted hearsay because the records were not attached to the affidavit.

The court agreed with Alan’s arguments and struck the affidavit.   The court stated in the first instance that “the affidavit contains no allegations of specific facts alleging what methods of control” Alan’s client exerted over the deceased.   The court also noted that “[w]hile there are vague statements alleging heavy medication, isolation and dependence” on Alan’s client by the deceased,  “the Affidavit fails in most paragraphs to indicate dates not only by days and months but in many places by years”.   The court also noted that there was nothing in the affidavit to indicate that Alan’s client “limited family or friend’s access to the decedent or was the gatekeeper to decedent’s finances”,  a hallmark of undue influence.    Finally, the court noted that there was nothing in the affidavit to indicate that the disposition in the 2004 will was “unnatural”,  yet another element of undue influence.

A carefully drafted affidavit of objections is an indispensable component to any will contest,  and as reflected above,  a generalized, non-time-specific affidavit is vulnerable to being challenged.


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