How Do You Challenge a Will?
The stories are legendary, sometimes the stuff of which novels are written or movies are made.
Indeed, sometimes money is thicker than blood. Loving, supportive family relationships can be quickly undone when a loved one dies and his or her will is published.
First, some comfort. Like most states, Massachusetts requires that a person who seeks to omit a child from his or her will must express a specific intent in the will to do so. However, that doesn’t preclude a jealous or greedy sibling from exercising the “undue influence” sufficient to prompt a parent to specifically exclude one or more children from their estate.
Undue influence is a legal term that describes a process by which one individual can use the force of their position over another to persuade that person to change the disposition of their estate. We see undue influence situations quite often where a person is managing the financial affairs of an elderly or ill parent who is incapable of managing their own finances. That person, by reason of their hold on the pursestrings, is in a position to wield undue influence over the parent.
Fortunately the law has found a way to address this potential injustice. Recent decisions from Massachusetts appellate courts now shift the burden of proof in cases involving persons who use undue influence to bring about changes in another person’s estate. The law now provides that if a person stands in a “fiduciary” relationship to another–such as by managing their finances or advising them regularly in financial matters–the burden of proof shifts to the fiduciary to show that any estate disposition that benefitted them was not the product of undue influence.
Of course, not every relationship between parent and child, or an elder and a caretaker, qualifies as a “fiduciary” relationship for undue influence analysis purposes. These are fact-intensive questions that often consume time, expense and emotion to litigate.
A will can be challenged not only on undue influence grounds, but also by claiming that the testator (the person making the will) lacked sufficient mental capacity to make a will. This again is a fact-intensive inquiry, one that can involve the retention of expert witnesses to review the testator’s medical and/or mental health records.
The procedure for challenging a will is full of pitfalls and deadlines. The testator’s heirs at law (spouse, children) receive notice from the executor (the person nominated by the will to manage the testator’s estate) that anyone choosing to challenge the will must enter an appearance by the “return date”, which is set forth in the notice. You then have 30 days from the return date to submit an “affidavit of objections”. The affidavit must have certain content in order to properly preserve a challenge to a will.