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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 41551
Experience:  Texas lawyer for 30 years in Estate law
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My father just passed on and he owned real estate and e and

Customer Question

My father just passed on and he owned real estate and e and my mother jointly own real estate so i assume like you, or another lawyer just said, that the real estate automatically goes to my mother. So my father gave me some money from the real estate but my mother and I do not get along so is there a way I can petition my father's will or contest it?
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Massachusetts
JA: Has anything been filed or reported?
Customer: the lawyer that is holding the will said he doesn't "have" to file. I told him I need him to file the will. He said he can't this week and he has thirty days.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I just really need to know how I can legally be involved with the administration of the will or if I can contest or petition to participate in the administration of the will, even if it isn't filed. Or if I can insist on the will being filed.
Submitted: 8 months ago.
Category: Estate Law
Expert:  RayAnswers replied 8 months ago.

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.

Expert:  RayAnswers replied 8 months ago.

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.

Expert:  RayAnswers replied 8 months ago.

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.

Expert:  RayAnswers replied 8 months ago.

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:

  • an unnatural disposition has been made
  • by a person susceptible to undue influence, to the advantage of someone
  • who had the opportunity to exercise undue influence, and
  • who used that opportunity to procure the contested disposition through improper means

These two are the main areas you can file a will contest concerning and attach the application for probate of the will.

Expert:  RayAnswers replied 8 months ago.

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.

Expert:  RayAnswers replied 8 months ago.

Lawyer for you here

Good luck to you here, sorry for your loss.

If you can positive rate it is much appreciated.