How To Challenge A Will In Massachusetts
The following article will provide some information regarding how an individual can challenge a will in the state of Massachusetts.
- File a timely appearance with the court. If you are considered an heir at law (typically if you are a child, parent, or sibling of the decedent) you will receive notice by mail that the decedent has died and has left a Will. This notice will identify the name of the Personal Representative of the Last Will and Testament and will indicate that if you wish to object to the Will, that you must file an appearance with the court by the date set forth in the notice. If you intend to object to the Will, you must file a “Notice of Appearance”.
- File an affidavit of objections. Within 30 days of filing a Notice of Appearance, you must file an “Affidavit of Objections” with the court, which provides your bases for challenging the validity of the Will. This affidavit must be signed under the penalty of perjury; set forth a legal basis for challenging the Will (i.e. undue influence, lack of mental capacity, or forgery); and be based on your personal knowledge.
- Serve written discovery and take any depositions within the court-established discovery period. After you file the affidavit, you will likely receive a notice from the court setting forth the period during which you can conduct discovery (the phase of the case when the parties have the right to acquire facts from one another). During this period, you can send the Personal Representative (or his or her attorney) a request for production of documents or interrogatories (a list of written questions that you are seeking responses to). These requests must be drawn carefully; as such, it is recommended that you hire an attorney for this step.
- Consider alternative dispute resolution. Parties can often reach a settlement through court mediation (a process in which the parties present their positions to a neutral party whose objective is to facilitate a settlement). It is important to note that all settlements of will contests are subject to approval of the court. However, the court rarely rejects a compromise that is the product of fair negotiation between the parties.
- Try to secure a shift in the burden of proof. In Massachusetts, courts will allow the burden of proof in Will contests to shift from one party to the other if certain facts are established that show undue influence in creating or executing a will. Specifically, if the person benefiting from a change in the decedent’s Will was a “fiduciary” with respect to the decedent, then the burden shifts to the Personal Representative to show that the change in the Will was not the product of undue influence. The question of whether the party benefiting from a change in the Will is a fiduciary is a complex one, but often focuses on the amount of control exerted by that person over the finances and/or medical care of the decedent, or the process by which the Will was amended.
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The estate planning process can often be complicated. The experienced Norwood and Greater Boston area wills attorneys of Fisher Law LLC can thoroughly explain your options and guide you throughout the process. Call us today at (781)-821-8800 or use our online form to schedule an appointment to speak with our office.