Contesting a will in Massachusetts

An interested party may object to a will on several legal grounds.

It is a scenario no one wants to face. In a time of grief after a loved one has died, a family member learns that the contents of the decedent's will are different than expected or than the deceased loved one had said they would be. Property may have been left in an unexpected proportion or to unanticipated people, possibly a non-relative, an employee, or a long time care taker. A close relative may have been disinherited. The terms of such a will may range from puzzling or confusing, to startling or even shocking. Many times there are codicils (amendments or changes to wills) that are executed immediately preceding the death of a loved one. This may raise serious concern amongst the Decedent's heirs.

Contesting a will in Massachusetts

In Massachusetts, a will can be probated (declared valid and its terms ordered carried out) informally or formally. To object to a will in informal probate, the contestant must start a formal proceeding. If the will has been submitted to the state court for formal probate, an interested party can contest the will by filing an affidavit stating the grounds for objection with the court in the probate proceeding. A will contest in Massachusetts is decided by a judge, not a jury.

Persons considered interested parties with standing to contest a will include those who would be heirs if the person died without a will, the spouse, beneficiaries of earlier wills who will lose their inheritances or receive less under the current will and certain creditors.

Reasons for objecting to a will

Under Massachusetts law, several valid grounds exist upon which a will may be contested, including:

  • Improper execution: The formal requirements for proper execution must have been met. For example, the will may have been improperly witnessed by someone who is related by blood or marriage to the Testator; or, the signature may be the product of forgery.
  • Incompetence or lack of testamentary capacity: At the time the will was signed, the testator must have been of sound mind and understood the nature of what he or she was doing by that act. He or she must also have known of the nature and extent of his or her property and the people who would have a legal claim to it.
  • Fraud or undue influence: When a third party exerts improper and controlling influence on a vulnerable testator and that control takes away the freedom to dispose of property in the will in the way the testator would have otherwise or when a testator relies on fraudulent or misrepresented information in deciding the terms of the will, the will may be invalid.
  • No knowledge of will contents: The testator must have known the contents of the will when signed.
  • Revocation: A later valid will may revoke it or the will may have been written on or partially destroyed.

The laws, procedures and deadlines associated with will contests in Massachusetts are complicated. It is wise for anyone who is considering whether a will contest would be an appropriate step or who is facing an objection to a will he or she has submitted for probate to engage legal counsel for advice and representation.

If you are the personal representative (executor or executrix) named in the will, remember that you have the duty to come forward with the will and file it with the probate court in the county in which the decedent lived within 30 days of the passing of the decedent.

From their office in Westborough, Massachusetts, the attorneys at Cohen Law Services, LLC, represent parties bringing and defending will contests in the Metro West and throughout Worcester County.