When a person is dissatisfied with the terms of a will, he has the option to challenge the document in the Massachusetts Probate Court. That person, of course, must have some interest in the will to have “standing,” and he must file in the county where the decedent’s will is being probated (usually in the county of last residence).
As we will illustrate in this article, the principle of standing can get a little tricky. But here is a general overview to help us get started.
Who Has Standing to Contest a Will
The executor of a will, however, by his title has the primary duty to address concerns of all named beneficiaries. This means that any one beneficiary already claiming some interest under the will must prove some other important interest that is contrary to that of the others.
Alternatively, spouses and other legatees who had an interest in a prior will — but have either a reduced gift or no interest in the current will — may also contest the will. Other persons who may standing include certain creditors who could benefit from a successful contest, and children who may have been unintentionally omitted.
How to Contest a Will | Procedures | Do Not Attempt Without Counsel!
An experienced Cape Cod Probate Attorney is usually best equipped to decide the preferred method for contesting a will, but there are two common avenues. The first, simply a “Motion to Dismiss” (the petition for probate) either challenges the jurisdiction of the Probate Court or else tries to establish the priority of one will over another.
The second method is a bit more technical and requires a deeper understanding of the law. An appearance must be filed with the Probate Court in the appropriate Massachusetts County, followed by an “affidavit of objections.” If the timing or substance of these documents is outside of certain guidelines, however, the case may be lost on technical grounds.
Another process that may be used if the parties agree is alternative dispute resolution (ADR), a quicker & less costly solution to legal disputes in general.
How to Contest a Will | Grounds | What is your Reason?
In the list of objections available to contest a will, there are certain issues that pop up consistently. Below is a list and explanation of the most frequent ones:
- Improper Execution: This is the grounds when the will is a forgery, or if there was improper witnessing e.g. not enough witnesses, not in line of testator’s sight etc.
- Dueling Wills: When one will is properly executed after another, the later one should prevail.
- Incapacity or Incompetence: If the testator did not know, or could not have known that he or she was signing a last will and testament the will can be contested.
- Fraud or Undue Influence: If a will was produced and either of these elements were present, the will may be contested.
In most will contests, the issues to be addressed are not so cut and dry. They are usually intertwined, and clouded by emotions that can run very high due to collateral problems within the family. Hiring an experienced probate attorney ensures not only that you will have a sound strategy for contesting a will, but that you have a means to protect yourself from the needless conflicts that often develop.