Anyone seeking to challenge the validity of a will offered into probate must initiate a proceeding known as a will contest. Grounds for initiating a will contest include the following:
- Allegations that the person who created the will (the “testator”) was “not of sound mind,” under the “undue influence” of another, or otherwise lacked capacity at the time the will was created;
- Allegations of fraud, forgery, or improper will execution; and
- Claims that the proposed will was revoked and/or that a more recent will exists.
It is important for anyone seeking to contest a will to consider that the process is a form of litigation that can be very costly and should only be entered into after legal consultation.
Who Can Contest?
To initiate a will contest, an individual must be able to demonstrate her interest in the estate, known as “standing.” In other words, the contestant must be able to show that under her proposed set of facts and legal theory, the contestant stands to receive some interest in the estate. Take the following example: the child of a testator has been omitted (disinherited) by a will offered into probate. The offered will leaves everything to the testator’s long-time gardener. If the child can demonstrate that the will is invalid (for example, on the basis that the will is a forgery), the child will inherit her “intestate” share of the estate (i.e. the inheritance provided to the child by law in the absence of a will). The child therefore has standing to contest the will. In contrast, the testator’s best friend, to whom the offered will leaves nothing, lacks standing because even if the will were determined to be invalid, the best friend would take nothing by intestate succession.
How and When Does One Contest?
Generally, a will must be offered into probate within 3 years of the testator’s death. G.L. c. 190B, § 3-108. To understand how and when a contestant may enforce her claim thereafter, it is important to understand the distinction between the Massachusetts Uniform Probate Code’s informal and formal proceedings. (See, An Introduction to Probate and Estate Administration in Massachusetts). An informal proceeding is designed to allow quick opening and closing of estates. The trade off, however, is that an informal proceeding leaves open the possibility of future contests: it lacks the finality of a formal decree as to the validity of a will. Accordingly, where a will has been informally allowed, a contest may be filed within 3 years from the date of the testator’s death or 12 months from the informal allowance of the will, whichever is later. In this situation, the contestant will file a petition for formal proceedings to adjudicate her claim.
Where a will is first offered into probate in a formal proceeding, a contestant has a much smaller time frame to first make her case. This is because a formal proceeding is designed to adjudicate the validity of a will once and for all. To be able to make that binding determination, the Court requires the will proponent to serve and publish a “citation” giving notice to would-be contestants that they must participate in the proceedings and present their claims now, or be forever barred. The citation, issued by the Court in response to a formal petition, will contain two deadlines that the contestant must meet: (1) the specific date upon which the contestant must first file an appearance in the action (known as the “Return Date”, which is usually 2 to 3 months from the filing date of the petition); and (2) the requirement that the contestant file a written Affidavit of Objections containing the contestant’s factual and legal claims within 30 days of the Return Date. G.L. c. 190B, § 1-401(e). If the contestant misses these deadlines, she may have forever missed her day in court, and the formal proceeding to admit the will continues without her participation.
Most of us are familiar with the basic documents, or “pleadings,” involved in a civil lawsuit: the plaintiff files a “Complaint,” to which the Defendant files an “Answer.” While a will is filed with a “Petition” and a contestant files an “Objection,” a will contest is a form of litigation and it is therefore helpful to think of these probate pleadings as equivalent to a Complaint and an Answer, respectively. The proponent of the will is asking the Court to declare that will valid. The contestant, in filing an Objection, is responding to the proponent’s factual claims and offering a competing set of facts to the court that become the basis of the parties’ legal arguments as to why the will is or is not valid. Like a typical civil lawsuit, a will contest entitles the parties to discovery, including depositions, interrogatories, document production, etc. The Court will hold conferences and hearings on evidentiary issues and motions made by the parties and, at the end of that adversarial process, will issue a final decree and order as to the validity of the contested will.
If you are the personal representative of an estate and confronting a possible will contest, or feel that you have an interest in an estate and would like to consider initiating a contest, please feel free to call or e-mail us for a further discussion. Our office has experience in administrating Massachusetts probate estates in voluntary, informal, and formal proceedings, including will contests.