We often receive calls asking about challenging a will in MA. These calls ask if it can be done, by whom, when and whether it has to go to court for the challenge to take place. This article will discuss the challenges and how to prevent them as well if you are the person creating the Will.

Challenges due to Validity

In Massachusetts, the basic requirements for a Will are simple. There must be a signed writing with two or more witnesses. The signature needs to be by the person who created the will or their representative (such as a power of attorney or lawyer). If the document was not properly executed as required, the document can be challenged as invalid. That would mean the document is tossed out as if it never existed because it wasn’t legally binding. Courts do not like to do this. Judges like to respect a person’s wishes as much as possible so if there is a way they can allow the document to stand, he or she will do so.

Mental Capacity

MA requires that the author of the Will be of sound mind. It is presumed that the person had the mental capacity so under a challenge, the opposing party bears the burden of proof. Here is an example:

Kylie was in the hospital after surgery. While she was still recovering, one of her children brought in a Will and presented to her mother for a signature. Kylie signed and it was witnessed as required by MA law. Kylie died the following day unexpectedly due to a blood clot.

After her death, her other two children realize that her Will made no mention of either of them. The document only referenced the daughter who brought in the Will for signature the day before she died. Both of her other children believe their mom lacked the mental capacity to understand because she was still recovering and was on heavy pain medications.

How to Fight Mental Capacity

Kylie’s children are going to want to hire an experienced attorney who will work to address whether Kylie’s mental state was affected when she signed the document. What medications was she taking? What effect would these have on her?

This is going to be a complex issue although it looks simple at first. It appears at first glance that Kylie shouldn’t have been allowed to sign given her medical situation. However, this may not be as cut and dry as that. If her doctors testify that she was alert, coherent and expected to make a full recovery but died suddenly, this is a different scenario than if she was heavily medicated and not expected to live. This situation is very fact dependent, as are most cases.

Undue Influence

Kylie’s children are going to want to look at whether their sibling had any type of coercion over her. Since this daughter is the only one to benefit from the Will, the court will want to see evidence of undue influence in terms of the age and health of the one signing the Will (testator), the relationship of the testator to the person exerting pressure, and the opportunity of that person to exercise pressure.

Undue influence is not easy to prove. The facts will be extremely important in a case where someone is challenging a will in MA for causes of undue influence.

Many times family members are not notified that they are being left out of a person’s last wishes. It is always smart to list the heirs who are meant to be left out so there is less ambiguity. This will not negate any and all challenges but it does limit the argument of it being an oversight due to her medical condition.

As you can see, there are so many questions to ask about this Will. Where did it come from? Who created it with Kylie? Why wasn’t it signed then? These questions, and more, are the reasons to have an experienced estate attorney working on your Will in the beginning or helping you if you will be challenging a will in MA.

Contact Jason by visiting his contact page here. Jason has many years of experience working with families to help build solid plans and to find solutions to questions after the fact.