Legal Minute with Cooley Shrair: Will Contests

SPRINGFIELD, Mass. (Mass Appeal) –  A will contest is a formal objection raised against the validity of a will, but do you know who can contest a will? Attorney Susan Mielnikowski from the Law Offices of Cooley Shrair in Springfield joined us with advice on understanding will contests.

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Understanding Will Contests

When and how can someone challenge a Will?
The Massachusetts Uniform Probate Code requires that a Will be presented to the Court within three years of death. Failure to file within the three year statute of limitations will bar the Will from being filed. Once presented, the Court will order that all interested parties be provided with notice, and that a notice be published in the newspaper, unless interested parties have previously assented to the Will’s allowance. During that Notice period, if someone with standing to object has reason to contest the allowance of the Will, they should file a Notice Of Objection, followed by an Affidavit of Objection, stating specific facts to support their claim that the Will should not be allowed.

Who has standing to contest?
Generally, the decedent’s heirs-at-law (children, grandchildren of a deceased child), the decedent’s spouse, and any devisee under a prior will whose devise is adversely affected by the Will currently being presented. It should be noted that every person creating a Will is permitted to give their assets to anyone they choose. There is no requirement that, for example, a parent provide for a child in their Will. As long as the parent did not leave a child out by mistake or accident, which we usually evidence by language in the document, there is no requirement to provide for a child, or anyone else. The only exception is providing for a surviving spouse. If someone fails to provide for their spouse, the surviving spouse can override the terms of the Will and claim a spousal forced share under Massachusetts law.

What facts would allow you to overturn the Will presented?
The person who contests a Will cannot do so just because they disagree with its terms. Rather, the person contesting has the burden of proving that it should not be allowed because it was improper. For example, (1) evidence that the will was not executed properly (forgery, improper witnessing, etc.), although there is special language, called a self-proving affidavit, that can be used when signing a Will to reduce this objection; (2) presenting a will executed after the one presented, or a codicil that was not included; (3) evidence that person who created the Will did not understand what he or she was signing; (4) proof that the person was not of sound mind at the time of execution; or (5) facts that the Will was procured through fraud or undue influence.

About Cooley Shrair:

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