How to Protect Your Last Will and Testament From Being Challenged

How to Protect Your

Last Will and Testament From Being Challenged

The Last Will and Testament is one of your most basic estate planning documents. If you die without a Last Will and Testament (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 Last Will and Testament 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 Law Offices of Patricia Bloom-McDonald is prepared to do both. 

Who Can Contest a Last Will and Testament?

Random individuals cannot challenge a Last Will and Testament; a person must have legal “standing” to initiate such action. The following people have legal standing to contest a Last Will and Testament:

  • Spouse

  • Beneficiaries under the Last Will and Testament submitted to probate

  • Legal heirs of the estate

  • Beneficiaries under the terms of a previous Last Will and Testament

  • Creditors of the estate

Even when a person has standing, however, she or he has to prove legal grounds for invalidating a Last Will and Testament. A Last Will and Testament cannot be contested simply because an individual is not happy with what he or she received as an inheritance. 

What Grounds Are Necessary For a Person to Challenge a Last Will And Testament in Massachusetts?

There are several legal grounds for contesting your Last Will and Testament in Massachusetts, including:

  • Procedural mistakes — claiming that your Last Will and Testament was not properly drafted, signed, or witnessed; or

  • 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; or

  • Undue influence — stating that you were influenced or manipulated to make changes to your Last Will and Testament by a person who would benefit from those changes ; or

  • Fraud — alleging that you were deliberately led to believe that you were signing some other document or that there was other misrepresentation concerning the Last Will and Testament; or 

  • Forgery –  alleging that your signature on the Last Will and Testament was forged; or 

  • Revocation – claiming that you revoked this Last Will and Testament before your death.

If a Last Will and Testament is contested by an heir, the probate process would become considerably delayed,, attorney and court fees are increased, and animosity 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 Last Will and Testament from being challenged, make certain that the attorney you work with has extensive experience and competent skills in estate planning with thorough Last Will and Testament preparation experience.

Steps You Should Take to Prevent Your Last Will and Testament from Being Contested

Although a competent estate planning attorney will ensure that your
Last Will and Testament 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 Last Will and Testament if you explain the reasons behind your decisions. It may be 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.  Remember you worked hard for your assets, it is YOUR Last Will and Testament, not anyone else’s, don’t allow anyone to influence your decisions.

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 Last Will and Testament is to make sure it contains a no-contest (“in terrorem”) clause. This clause states that if an heir contests the Last Will and Testament and loses, he/she will get no inheritance at all. Of course, this method only works if the existing Last Will and Testament provides the targeted heir with a fairly significant inheritance. If the individual has been disinherited, she/he has nothing to lose by challenging the Last Will and Testament.

Prove competency

A common way of challenging a Last Will and Testament is to argue that the deceased was mentally impaired at the time he/she signed the Last Will and Testament. Taking a competency test with a doctor who will attest to you being cognitively intact or having a recorded video of the signing can be proactive ways of preventing your Last Will and Testament from being challenged.

Please note: Our firm focuses on drafting quality Last Will and Testaments along with other Estate Planning Documents. Be rest assured that the documents we will prepare for you will be difficult to challenge. We do not provide services to assist with contested matters. If such a matter does arise, we will be able to refer the matter to a competent Law Firm that does offers that service, so you will still be in excellent hands.