How Do I Challenge or Contest a Will or Trust in Massachusetts on the Basis of Undue Influence?

Posted by Alan Fanger

It is not uncommon for wills or trusts to be made or changed due to undue influence, and fortunately, there are remedies available to challenge such actions and law that can work to the challenger’s benefit. But first, let’s get a handle on what “undue influence” really is.

“Undue influence” refers to a process by which a person overwhelms the will of another in order to secure benefits for themselves, their spouse or their children. It can occur in very subtle ways, but in my practice I see any of the following behavior as being carried out by a person using undue influence:

1. The perpetrator has certain control over the victim, either through a caregiver relationship, management of their finances, possession of a power of attorney, or the sharing of bank or other accounts.

2. The perpetrator cuts off the victim from contact with other family members or friends, and then accuses those family members and/or friends of having abandoned the victim.

3. In some but not all instances, the perpetrator is going through financial difficulties, and sees the exploitation of the vulnerable person as being their path to financial relief.

The procedures for challenging a will or trust due to undue influence are different from one another.

To contest a will on the basis of undue influence, a “formal” probate petition needs to be filed (this is typically filed by the attorney for the person nominated by the deceased person’s will to be the “personal representative” of his or her estate). Once the petition is filed, a document known as a “citation” is issued, and that citation is then sent to all of the deceased person’s heirs (and is also published in a local newspaper). The citation provides a date by which anyone challenging the will must enter an “appearance”. The appearance is nothing more than a document filed with the court that states that either you (or an attorney acting on your behalf) is appearing in the matter. Within 30 days of the deadline to file an appearance, you must then file what is known as an “affidavit of objections”. This is a statement under oath by which you must set forth facts forming basis of your claim of undue influence. In most instances you can obtain additional time from the court to file an affidavit, and during the interim period you or your attorney can obtain further information and evidence to include in the affidavit. Other persons with personal knowledge can also submit affidavits. It is critically important to have an attorney review any affidavits of objection that are filed, as they can be easily challenged.

To challenge a trust on the basis of undue influence, you need to file a lawsuit (known as a complaint) in either the Probate or Superior Court. At the beginning of the case, you will typically want to attempt to obtain what is known as an “injunction” to prevent the trust assets from being transferred while the case is ongoing; this requires either an affidavit from you and/or other persons, or a signature at the end of the complaint itself verifying under the pains and penalties of perjury that the allegations are true.

In challenges to both wills and trusts based on undue influence, the burden of proving an absence of undue influence shifts the person alleged to have engaged in undue influence, but only if that person stood in a “fiduciary” relationship to the victim (described in Paragraph 1 above) and actually benefitted from the will or trust or amendment to those instruments. This burden shifting is often quite effective in facilitating the early settlement of these disputes.


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