How Do I Challenge a Will or Trust in Massachusetts?

Sadly,   more and more members of “The Greatest Generation” are dying,  and in the process are leaving unprecedented wealth to their children and grandchildren.    Along the way,  however,   disputes have arisen over the validity of certain distributions of that wealth.     The courts are seeing greater numbers of “will contests” or challenges to trusts or amendments to trusts.      You may feel that you have been unfairly left out of a parent or sibling’s estate plan or inheritance through the conduct of a sibling, caretaker or other person.    Thankfully,  there are established procedures and strategies for challenging those actions.      What I’ll discuss here are the two most common grounds for invalidating a will or trust:  undue influence and lack of capacity.

Undue Influence

“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 challenge 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.

Lack of Capacity

Many wills and trusts are also made or amended when the person making the will or trust is in a weakened or compromised medical or mental health condition.       The law presumes that when someone signs a will or trust,   they have sufficient capacity to comprehend what they are doing.   However,   someone challenging a will or trust can erase that presumption—and place the burden of proof on the other party—if an initial showing can be made that might suggest that the person did not comprehend the significance of making a will or trust.’’

This is where it is vitally important to have an experienced attorney on your side.

A lack of mental capacity can be proven in different ways.     Observations of the person, and recollections of their conduct and statements they made, around the time they signed the will or trust, are quite relevant on the question of capacity.    The following examples are suggestive of a lack of capacity:

1.   The person cannot recognize loved ones, or at least forgets their names.

2.   The person has a neurological condition that,  by itself,  may affect capacity.   This would include advanced forms of dementia,  Parkinsons or Alzheimers Disease.

3.   The person is unable to perform tasks that they once could perform with what we would call “unconscious competence”;  that is,  the ability to complete a task without even thinking about it.   For example, in a recent case in which I was involved,   a person who only weeks earlier had amended his will became lost while driving home.   He had to stop at a fire station about two miles from his home to ask for directions.

4.   The person is not oriented to time or place.    In a recent case,   evidence came out that the person was asked (in 2012) who the president is.     He said “Clinton”.

5.   The person has significant physical or medical conditions that impact capacity.      These could include blindness,  certain advanced stage cancers,  kidney disease,  congestive heart failure or stroke.

As with undue influence,   a challenge to a will based on lack of capacity must be asserted first with an appearance that is filed by the deadline set forth in the citation,  and then must be followed up with an affidavit of objections.   The affidavit of objections can be submitted by the person challenging the will or any other person with direct personal knowledge of the person’s conditions.      An affidavit from a physician or mental health professional is typically not required,  though submission of medical records (if you have access to them) can be helpful.

Once the affidavit of objections is filed,  the case proceeds along to trial unless the parties can reach a settlement.

The procedure regarding the challenge to a trust based on a capacity is more simplified.      All that is needed is a complaint filed with the court alleging facts that suggest lack of capacity.    However,   since trust assets (unlike assets in an estate) may be quickly transferred,  it is critical that efforts be made at the beginning of the case to seek a court order preventing the person controlling the assets from transferring them.


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