The Affidavit of Objections: No Trifling Matter

By Alan Fanger

Anyone in Massachusetts who wants to challenge either a will or the person nominated in the will to serve as executor of the estate is required to file with the court a document known as an “affidavit of objections” that is signed under the pains and penalties of perjury. This is the most important document that anyone challenging a will can prepare, as it sets forth the bases for the challenge.

A great deal of care must go into the preparation of this document, if only because the standards governing affidavits are so difficult to satisfy. First and foremost, it’s important to note that although you yourself may be challenging a will, affidavits of objection may be filed not only by you, but by others who have “personal knowledge” of facts pertaining to the decedent and the process by which the challenged will was prepared and executed. This is important, because as the “contestant” to the will you may not be in firsthand possession of critical facts, while others know of those facts and stand prepared attest to them in writing and under oath.

Secondly, affidavits must contain specific facts supporting the challenge. The biggest problem afflicting affidavits is that they are too general. An affidavit with general statements about the decedent is subject to being declared invalid by the Probate Court, and with no affidavit your challenge goes up in smoke.

Here’s a good example of how being general in an affidavit can be fatal to a challenge to a will:

Suppose that you claim that the decedent (e.g. your mother or father) lacked sufficient mental capacity when he/she signed the will that has been offered for probate. In your affidavit you state the following: “Dad was forgetful. He had early dementia and was on Zyprexa.” That statement is far too general because people who are forgetful, have early dementia and are taking Zyprexa can also have sufficient mental capacity to sign a will. A more appropriate and specific description would be as follows: “Dad did not recall the names of his grandchildren and occasionally did not recognize me when I visited him at home. Dad told me how he occasionally got lost driving home from the bank where he regularly did his banking. One day when we were at church, Dad was convinced that he had driven there (when I had in fact driven him) and he spent several minutes after mass in hysterics, believing that he had lost his car keys.” This statement recites highly specific instances of behavior that would call into question one’s mental capacity to make a will.”

The same sort of specificity applies to claims of undue influence. It is not enough to say that “my sister completely controlled my mother’s life and overpowered her.” The appropriate and specific approach would be to say the following: “My sister got my mother to sign a power of attorney in her favor, and she took over the payment of my mother’s bills. When we tried to find out about Mom’s finances, my sister refused to provide any answers, and when we called to talk to Mom, my sister would often get on the phone and say “Mom can’t talk now”, or would listen in on the conversation and speak up when we asked about her spending.”

Most importantly, it’s critical that you have the assistance of an attorney when drafting affidavits of objection. In a high percentage of cases, the executor’s attorney (who is charged by law with defending the will) will file a motion with the court to strike an affidavit that is believed not to satisfy these stringent standards, and in cases where contestants have not been represented, a high percentage of these motions have been allowed.

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