Beyond The Will, Client Compass

Losing a parent is difficult. Beyond managing your personal and emotional wellbeing, you may need to settle their affairs and handle certain administrative tasks. But what do you do if your parent left everything to their partner – your stepparent – under potentially unfair circumstances? There are a variety of options to address this situation.

Let’s consider one possible scenario. The good news is your father created an estate plan prior to his death. The estate plan likely created protective measures in the event he was incapacitated during his lifetime and, hopefully, accurately described his wishes following his death. The bad news, as you may later learn, is that he left the entirety of his estate to his new wife, your stepmother.

There are a few ways to challenge the validity of the purported will. If you learn that your father created a “death bed” will, making new and surprising gifts to your stepmother, we may have grounds to challenge capacity. The testator (your father) must have testamentary capacity at the time he executed the will. The critical question is whether your father was of “sound mind” when the will was executed. There is a presumption that the testator had capacity at the time of signing, and you will bear the burden of proof illustrating otherwise.

You may also contest the validity of the will by arguing undue influence. If your father’s will was a product of undue influence, the will cannot stand. Undue influence causes the individual’s free will to be destroyed so that he or she acts contrary to his or her own wishes. Undue influence is challenging to prove, but can be shown by demonstrating that

1. an unnatural disposition has been made
2. by your father who is a person susceptible to undue influence
3. exerted by your stepmother who had the opportunity to exercise undue influence and
4. stepmother did use that opportunity to disinherit you to her benefit.

Undue influence does not require a showing of direct evidence. Still, it may be proved by circumstantial evidence such as the health or mental condition of the testator and the opportunity available to an “influencer”. Flattery, persistence or solicitations do not give rise to undue influence. In fact, some influence may be exercised over the testator which is not considered by the court as “undue.”

A claim of undue influence is an appealing route to go down, especially if you believe your parent’s partner was solely interested in the money. However, it is important to remember that you need to prove that your parent was overpowered and became subservient to the person who is alleged to have exercised it (their partner); a high threshold to meet. The analysis is fact determinative, and every case is analyzed differently.

Other grounds in a will contest include lack of attesting witnesses, forgery, a later will, testator’s lack of knowledge of the contents, testator’s lack of intent, and fraud.

Whether you are litigating the validity of the probated will on grounds of testamentary capacity or undue influence (or both), you will follow the same procedure. You will first need to file an appearance and objection to the will with the Probate and Family Court. Within thirty days of filing your appearance, you need to file your affidavit of objections, stating the specific facts and grounds upon which you object to the validity of the will. Within this affidavit, you would cite your father’s lack of testamentary capacity at the time he signed the will and/or your stepmother’s opportunity to exert undue influence. The case will proceed, discovery will commence, and the case may ultimately result in a trial. Ultimately, the judge will decide whether or not the will and its within distribution to your stepmother is valid.

Another strategy would be to remove your stepmother as personal representative of your father’s estate if she was nominated in his will. The Massachusetts Uniform Probate Code provides for a procedure and the grounds to remove someone as personal representative. If your stepmother is subsequently appointed as personal representative, and makes improper distributions to herself, she may be removed and held liable for those actions. You, as a person interested in the estate, can petition the Court to remove your stepmother as personal representative because she has mismanaged the estate and failed to discharge her duties by improperly distributing to herself. If the matter continues to trial, you will need to prove your stepmother’s unsuitability as a fiduciary and cite her bad acts as personal representative.

Before heading down the road of litigation, it is important to remember that every adult of sound mind has the right to make a will. Your father may ultimately decide to re-draft their estate planning documents to benefit his new partner, which is a perfectly legal decision to make. As long as your father has testamentary capacity and formal execution procedures are followed, he is allowed to make those changes. The burden is on you, the person alleging the undue influence or lack of capacity, to prove it, which may be a costly endeavor.

Lastly, it is important to keep in mind the consequences if your father does not create a will during his lifetime. Without a will, intestate statutes will likely, and negatively, impact your inheritance.

Under the Massachusetts Uniform Probate Code (MUPC), a surviving spouse will take the entire estate if a decedent has no descendants or if the only descendants are also descendants of the spouse. If you are a descendant of your father and you are not a descendant of your stepmother, then she will not receive the entire estate.

However, the following distribution to the surviving spouse will occur by law: “the first $100,000 plus ½ of any balance of the intestate estate, if 1 or more of the decedent’s surviving descendants are not descendants of the surviving spouse.” G.L. ch. 190B, § 2-102.

In other words, because you are not a descendant of the surviving spouse, she will only collect the first $100,000, plus ½ of the balance. Here, because you are not a descendant of the surviving spouse, you are not a natural object of the bounty of the surviving spouse, and therefore could eventually be disinherited if the surviving spouse chooses to favor her children by another partner.

As always, we recommend prior planning and proper execution of a will, to avoid having to follow statutory provisions related to inheritance.