A lot of time and thought goes into the preparation of a Will, and when someone signs it, they expect that the document will stand as their last instruction for how their assets should be distributed. They have every right to assume this. However, sometimes a challenge made be made to the Will. Although the vast majority of Wills presented to the Probate Courts in Massachusetts are accepted and the directions followed without any disputes, occasionally a Will is contested.
In Massachusetts, Will contests fall into three general categories: Mistakes, incapacity of the testator, and fraud or undue influence.
1. Mistakes In Execution or Mistake By The Testator
Mistake In Execution
This challenge is based on the document form. The Massachusetts statute that controls Will executions, M.G.L. ch. 19oB, sec 2-502, provides that a Will must be in writing, signed by the testator (or by someone else at the specific direction of the testator), and signed by two or more competent witnesses.
The possible mistakes can be: the Will was not signed by the testator, no witnesses signed the Will, the Will is not in writing, or the testator did not know he was signing a Will.
Any bequest to a witness, or the spouse of a witness, who is also a beneficiary under the Will is void, unless two other witnesses also sign. M.G.L. ch 190B, sec 2-505.
Oral Wills – called Nuncupative Wills – are allowed in very limited circumstances.
Mistake by The Testator
This challenge is based primarily on the contents of the Will. A challenge may be based on the fact a child or other natural heir was omitted from the Will. This type of challenge may be avoided by making it clear in the Will that anyone omitted was omitted intentionally.
The person presenting the Will to the Probate Court has the burden of showing the Will was properly executed. This is usually easily established by the execution language at the end of the Will in which the executor declares that they have signed the document in front of witnesses, acknowledge that the document is their Will, and that they have signed it voluntarily. The witnesses then sign an Affidavit stating they observed the testator signing the Will.
This challenge is based on the mental condition of the testator. The person contesting the Will charges that the testator was not of sound mind when the Will was exexuted. The legal presumption is that the testator was of sound mind at the time of execution, and anyone contesting this has the burden of proof.
A person signing a Will must be competent at the time of execution, understand what is in their estate, and know who would be the natural heirs to that estate. This does not mean the testator must follow any distribution plan, it simply means the testator must be aware what they own and who would be in line to receive their estate.
An interesting case discussing that the timeframe for capacity is at the time of signing, and that someone may lack capacity at other times. O’Rourke v. Hunter, 446 Mass. 814, 827, 848 N.E. 2d 382, 391 (2006).
3. Fraud and Undue Influence
This challenge is based on the contents of the document, the behavior of third parties, and on whether the testator signed the Will with a full understanding of the circumstances. These are actually two separate challenges.
A fraud challenge maintains that the testator was deceived prior to signing the Will. Although the testator acted freely, a misrepresentation led them to sign a Will they never would have signed had they known the truth.
An undue influence challenge maintains that the testator’s own free will was overcome through coercion, and the resulting Will benefits the person who applied that pressure. There are many cases in Massachusetts that have examined undue influence claims, and the courts look at variety of factors to determine if a Will was the result of undue influence. Some of the important factors mentioned in the cases are: the age and health of the testator, the relationship of the testator to the person exerting pressure, and the opportunity of that person to exercise pressure.
One of the earliest cases discussing undue influence:
Neill v. Brackett, 234 Mass. 367, 369, 126 N.E. 93, 94 (1920).
The person challenging the Will has the burden of proving that the Will was the result of fraud or undue influence.