The Last Will and Testament is the most basic estate planning document. If you die without a will (intestate), crucial decisions about how your property will be distributed and who will be the guardian of your minor children will be decided by Commonwealth of Massachusetts intestacy laws.
Because your will is so important, you will want it to be prepared by a well-respected estate planning attorney. You will also want steps to be taken to keep it from being contested. The skilled team of Surprenant & Beneski, P.C., serving clients in Southeastern Massachusetts and Cape Cod, is prepared to do both.
Please note: Our firm focuses on drafting quality Last Will and Testaments that are difficult to contest. We do not provide services to help with contested matters. We are happy to refer you to local firms that offer that service.
Who can contest a will?
Random individuals cannot contest a will; a person must have legal “standing” to initiate such action. The following people have legal standing to contest your will:
- Beneficiaries under the will submitted to probate
- Legal heirs of the estate
- Beneficiaries under the terms of a previous will
- Creditors of the estate
Even when a person has standing, however, she or he has to prove legal grounds for invalidating the will. A will cannot be contested simply because an individual is not happy with what he or she received as an inheritance.
On what grounds can someone contest my will in Massachusetts?
There are several legal grounds for contesting your will in Massachusetts, including:
- Procedural mistakes — claiming that your will was not properly drafted, signed, or witnessed
- Lack of testamentary capacity — claiming that, at the time of signing, you did not understand the nature or purpose of the document or what property constituted your assets
- Undue influence — stating that you were influenced or manipulated to make changes to your will by a person who would benefit from those changes
- Fraud — alleging that you were deliberately led to believe that you were signing some other document or that there was other misrepresentation concerning the will
- Forgery – alleging that your signature on the will was forged
- Revocation – claiming that you revoked this will before your death
Should a will be contested by an heir, probate would become considerably delayed,, attorney and court fees are increased, and rancor among family members can last for generations. Sometimes, a disgruntled relative feels unfairly denied an inheritance or the child who was your end-of-life caretaker is left a much larger portion of the estate and another child is resentful. To protect your will from being contested, make certain that the attorney you work with has extensive experience and consummate skill in estate planning and exacting will preparation.
Steps You Can Take to Prevent Your Will from Being Contested
Although a competent estate planning attorney will ensure that your will is properly drafted and executed, and will recommend or take whichever of the following actions need to be taken, it is helpful for you to understand how unnecessary family drama can be avoided by:
Explaining your decisions to your family members
Your loved ones are far less likely to contest your will if you explain the reasons behind your decisions early on. Better a small dispute now than a family split after you’re gone. Factors like your heirs’ health, income, family size, unrepaid loans, special needs children, or extra responsibilities for your care — may all play a part in the way you want to distribute your assets.
Also, if you have left a large inheritance to a friend, relative outside of your immediate family, or a hired caretaker, make certain that your family understands your rationale and will respect your final wishes.
Using a no-contest clause
As our estate planning attorneys will make clear to you, often the most effective way of preventing a challenge to your will is to make sure it contains a no-contest (“in terrorem”) clause. This clause states that if an heir contests the will and loses, he/she will get no inheritance at all. Of course, this method only works if the existing will provides the targeted heir with a fairly significant inheritance. If the individual has been disinherited, she/he has nothing to lose by contesting the will.
A common way of challenging a will is to argue that the deceased was mentally impaired at the time he/she signed the will. Taking a competency test with a doctor who will attest to your being cognitively intact or having a recorded video of the signing can be proactive ways of preventing your will from being challenged.
Contact Our Experienced Estate Planning Attorneys to Make Sure Your Will Is Airtight