Estate Law Questions? Ask an Estate Lawyer.
Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.
You always have the right to file a will contest here once it is filed for probate.If you feel that there was undue influence, or lack of capacity or defects in the will all of these can serve as a basis for such a contest.I would use your time here to locate a lawyer so you can challenge here because the time to do so is short after the application for probate is filed. here in MA.
Lack of capacity and undue influence, the two most common claims asserted in Massachusetts will contests, were explained in the 2006 Massachusetts case of O'Rourke vs. Hunter.
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 the value of his or her property, the people who would be the objects of his bounty, or the meaning of the Will document.
n a will contest, 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:
These two are the main areas you can file a will contest concerning and attach the application for probate of the will.
After the return date, you have 30 days to file an affidavit of objection, a detailed, formal pleading that tells the court why you believe the will is invalid. You must list provable reasons, such as that the testator, or the person who wrote the will, was not of sound mind at the time she did it, or that another beneficiary influenced her to write her will the way she did. If your affidavit of objection is procedurally incorrect in any way or fails to give a legitimate reason why you are contesting the will, the court will dismiss it, so you will need your lawyer to contest this properly.
If the court determines that your affidavit of objection has merit, the judge will probably schedule a pretrial conference within the next 30 days at which pretrial issues will be discussed and the judge will set a trial date. Having that date postponed or “continued” requires a formal motion, or written request, to the court that won’t be granted without a very good reason.
You have rights here but short time frame so look for a lawyer now so they can prepare to challenge.
I appreciate the chance to help you today.Thanks again.
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