Last month in this space my law partner Maria Baler wrote about the importance of planning to avoid probate because of the time and costs associated with probate (Avoid Probate at all Costs, or Incur a lot of Them).  Another benefit derived from avoiding probate is eliminating the possibility of a Will contest.  If a probate proceeding is necessary, the Personal Representative must send notice to all of the decedent’s heirs.  For disgruntled heirs, receipt of such a notice is practically an invitation to contest the Will.  If no probate is necessary, then no such notice need be given.

Grounds for overturning a Will include the following, with numbers 1 and 2 being the most common basis of a Will contest:

1. That the decedent was not of sound mind when he signed his Will. Note that the law only requires that the maker of the Will be of sound mind at the moment he is signing the Will.  While evidence that the individual was not of sound prior to or after he signed the Will may be relevant to the testator’s state of mind at the time he signed the Will, it is not necessarily conclusive.
2. That the Will was the product of fraud, coercion, or undue influence.  That is, the person who stands to benefit under the Will improperly influenced the decedent to write the Will in the beneficiary’s favor.
3. That the Will was not executed properly.  In order to be valid in Massachusetts, a Will must be witnessed by two people and should be executed with so-called testamentary formalities.  Allegations that the Will was forged would also fall into this category.
4. That the Will presented is not the final Will of the decedent.
5. That the decedent did not understand that he was signing his Will.

While there are situations when a challenge to a Will is warranted, if you’re reading this post, chances are you are of sound mind and you do NOT want your final wishes altered because of a Will contest brought by a disgruntled heir.  Although it is not easy to win a Will contest, it is easy for a disgruntled heir to allege that the Will should be overturned, leading to significant delays in the probate process and significant expense for all involved.  If you plan your estate so that no probate is necessary, you will greatly reduce the opportunity for mischief by relatives or kin who are unhappy with your decisions regarding the disposition of your estate.

Published July 2014