Beyond The Will

Challenging a Will Based on Incapacity or Undue Influence

May 26, 2022


When a loved one passes away and their estate plan is revealed for the first time, it is common to experience varied emotions, including curiosity, disappointment, and anger. Depending on the beneficial interests or fiduciary appointments under the will, you may wonder whether you have a claim to challenge the will. This post will take you through the basics of contesting a will based on incapacity or undue influence.

I. Who Can Challenge a Will

A beneficiary does not acquire a legally protected interest in the testator’s property until after his or her death. Thus, typically, one cannot challenge a will until after the testator’s death, as, at least in theory, the testator can change his or her estate plan at any time before passing. This is not the case for a Durable Power of Attorney or Health Care Proxy, which may be challenged during the principal’s lifetime.

There is no limit to who can institute a challenge to another’s will. Generally speaking, it is typically one or more family members of the testator who are aggrieved by the will. However, the challenger must be able to demonstrate their interest or claim in the decedent’s property or estate, otherwise known as “standing.”

II. The Basics of Challenging a Will Based on Incapacity

In Massachusetts, pursuant to G.L. c. 190B, § 2-501, any individual at least eighteen years old and of sound mind may make a will. The phrase “sound mind” is synonymous with “testamentary capacity.” The testator must be free from delusion and understand the purpose of the will, the nature of his or her property, and the persons who could claim it, when creating their will.

There is a presumption of being of sound mind, although a person may possess testamentary capacity at any given time and lack it at other times. That presumption goes away when the challenger, or contestant, of the will introduces some evidence – direct or circumstantial – of lack of testamentary capacity. The burden then shifts to the proponent of the will to prove that the testator possessed the requisite capacity at the time of execution of the will.  Notably, claims that the testator poorly disposed of their property do not amount to evidence of incapacity.

III. The Law on Challenging a Will Based on Undue Influence

Even if a person meets the standard for testamentary capacity, you may attempt to invalidate their will on the grounds of undue influence. Such a claim is based on one individual improperly influencing the testator to make or amend their will in a way that unfairly benefits the influencer.

A case for undue influence requires you to show that an:

 (1) unnatural disposition has been made

(2) by a person susceptible to undue influence to the advantage of someone

(3) with an opportunity to exercise undue influence and

(4) who in fact has used that opportunity to procure the contested disposition through improper means.

While many factors are considered in a claim for undue influence, several predominate. This can include the recipient of the beneficial disposition, the testator’s mental and physical condition at the time of execution of the will, and the testator’s social interaction – or lack thereof – in the time leading up to the execution of the will.

 The party challenging a will on the grounds of undue influence bears the burden of proving the allegation. However, if a person in a fiduciary relationship benefits from the transaction, that burden shifts to them. Although family relations do not suffice, per se, to create a fiduciary relationship that shifts the burden onto them and heightens scrutiny, these relations can become fiduciary if the decedent was dependent on the beneficiary in financial affairs. Typically, proof of undue influence is circumstantial rather than direct.

IV. How to Challenge a Will

Generally, pursuant to G.L. c. 190B, § 3-108, the will must be offered into probate within three years of the testator’s death. An estate administration proceeding may be informal,  designed to allow for quick opening and closing of estates, or formal.

An informal proceeding lacks the finality of a formal decree as to the validity of the will. Thus, a will contest may be filed at any time within the later of three years from the date of the testator’s death or twelve months from the informal allowance of the will.

If the will is subject to formal administration, the time limitations are far stricter. Soon after the filing of the will, together with other necessary probate documents, the Court will issue a Citation, which is required to be served on all heirs of the testator and beneficiaries under the will.

The Citation will contain two deadlines with which any would-be contestant must meet to preserve his or her claim:

(1) a date upon which the contestant must file a Notice of Appearance and Objection to the underlying Formal Petition; and

(2) a date, thirty days from the initial deadline, with which the contestant must file an Affidavit of Objections detailing the grounds upon which they rely to seek to invalidate the will.

It is important to be mindful of these deadlines, as an otherwise meritorious claim may be barred on procedural grounds.

receive news & alerts

Yes! I’d like to receive updates with firm news and insights that are relevant to me!