The two most common reasons for overturning a Will were discussed in the 2006 Massachusetts case of O'Rourke vs. Hunter:

1. Lack of Testamentary Capacity. At the time of executing a Will, the testatrix must be free from delusion and understand the purpose of the Will, the nature of her property, and the persons who could claim it. The critical question is whether the Testator was of sound mind at the time the will was executed. A person may have testamentary capacity at one time, and lack it the rest of the time. The proponent of the Will, who has the burden of proof on the issue of testamentary capacity, is aided by a presumption that the testator had the requisite testamentary capacity. The presumption evaporates when there is evidence of lack of capacity, such as Testator did not comprehend • his or her property • the people who would be the objects of his bounty • the meaning of the Will document.
   
2. Undue influence. The contestant has the burden of proving undue influence, and the proponent of the Will wins if he affirmatively demonstrates that the contestants have "no reasonable expectation of proving an essential element of [their] case." Four considerations are usually present in a case of undue influence:
   1. an unnatural disposition has been made
   2. by a person susceptible to undue influence, to the advantage of someone
   3. who had the opportunity to exercise undue influence, and
   4. who used that opportunity to procure the contested disposition through improper means

Undue influence takes away the freedom of the Testator to exercise their own free will. Claims of undue influence can also arise is cases involving deeds and real estate transfers. In 2010 the Massachusetts Appeals Court reviewed a deed that was executed by an elder who was being cared for by one of her daughters.

The Court reviewed a series of events that began in July, 2001 when Constance Patterson executed a will leaving her estate to two of her children, Linda and Sharon. Several weeks later, Constance was taken to another attorney, where she executed a substantially similar Will, as well as a Power of Attorney.

The Attorney explained that she could protect her home from a Medicaid lien if property was transferred to a family member who lived with her. In 2002 Linda moved in with her Mother, and later that month took Constance back to the Attorney, where Constance executed deed conveying West Yarmouth house to Linda, with life estate reserved.

After Constance died in 2004, daughter Susan filed a case alleging undue influence. Susan had provided live-in home care for her Mother during 2001 and she claimed the conveyance was the product of undue influence. The Massachusetts Appeals Court affirmed a trial court finding of no undue influence. The Court noted that Linda held a POA, but it was not used to effect the transaction. The Court also accepted the Attorney's testimony, and concluded that Linda did not exercise undue influence over her Mother’s decision. The purpose of the 2002 deed was to avoid a Medicaid lien. The Appeals Court also questioned Susan's standing to challenge the deed, because she had been disinherited in the 2001 Wills. Read the case.

Other grounds for challenge to a Will are:

• Non compliance with formalities. There must be 2 witnesses, the Will must be in writing;
• Ambiguities of Language - Patent, latent;
• Fraud - Mistake induced by intentional misrepresentation or misconduct, concealment of fact;
  • Fraud in Execution of the Will;
  • Fraud in Inducement, when Testator relies on misrepresentation, non-disclosure, concealment of fact EXTRINSIC to the will
• Forgery
• Mistake in the Execution of the Will: Either in the identity of the instrument as a Will or mistake in the Contents
• Duress: the Will is voidable, not void
• Revocation by
  • 1) executing a subsequent Will
  • 2) burning, tearing, canceling, obliterating the Will
  • 3) by divorce, annulment

When preparing objections to a Will, we investigate the circumstances that surrounded the preparation and execution of the document. Did the attorney who prepared the Will follow the ethical rules and procedures that protect a client? Who drove the client to the law office? Who contacted the law office? Who attended the meeting with the Testator? What were the levels of participation by the people involved? Were drafts mailed to Testator? Does the document cause disinheritance or disproportionate distributions?

Massachusetts Probate Court Rule 16 requires anyone contesting a Will to file an affidavit of objections "stating the specific facts and grounds upon which the objection is based."

Under rule 16 (b), the proponent of the Will may move to strike each contestant's affidavit of objections on the ground that it fails to state "specific facts and grounds." If the Probate Judge agrees and strikes every affidavit of objections, the Will may proceed to probate.

If the answers to these questions provide grounds to contest a Will, it's important to act promptly. Please call me for an appointment to discuss the case, so that your Affidavit can be filed in time to meet with the deadlines imposed by the Probate Court rules.

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