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New Rules for Will Contests

In March 2012, Massachusetts adopted the Massachusetts Uniform Probate Code. Those representing either petitioners or contestants in will must be aware of changes brought about by the new law. This includes the expansion of categories of people with standing to contest wills. For example, stepchildren may gain eligibility depending on the individual case details. New burdens and responsibilities have been placed on the conservators, guardians, and other trustees of persons who may be eligible to contest wills. All operative provisions of the MUPC should be reviewed prior to the filing of, or commencing the defense of, any will contest.

The following people may contest a will:

  • The decedent's heirs-at-law
  • The decedent's spouse
  • Any devisee under a prior will whose devise is adversely affected by the will being submitted for probate
    • A devisee under a prior will may establish standing by demonstrating that he or she was given less in the will submitted to probate.

A creditor who has property attached that would transfer to the debtor, but for the allowance of the will, has standing as well.

A guardian ad litem (GAL) must be appointed to minors or individuals with legal disabilities who are interested in contested proceed ings.

A contestant has the responsibility of proving his or her standing and relationship to the decedent by a fair prevalence of the evidence. If a proponent questions a person's standing, they should file a motion to strike this person's appearance.

The right to contest a will continues after the individual's death. A will contest may be initiated and pursued by the personal representative whether or not the initial action was during his or her lifetime.

The interests of the devisees claiming under a will must be sufficiently represented by the named personal representative. Individual devisees are not entitled to appear separately and become parties to a petition for probate of a will, unless they are contesting the will and would benefit if the will is disallowed. Sometimes the court will permit a beneficiary of the contested will to appear separately for valid reason. The procedure for this type of party to gain standing is known as a motion to intervene.

The personal representative is primarily responsible for the representation of the estate as well as the conduct of the trial. However, if one legatee has interests differing from those of the legatees generally, it is in the presiding justice's discretion to allow those with different interests to be heard.

Although the new law provides for additional parties that can contest a will, the short time frame to contest a will remains unchanged from the prior law. Therefore it is important to act quickly if you have concerns about the validity of a will because your failure to object in a timely manner will act as a complete bar to you being able to contest it will. Our office can provide additional details of the issues raised in this article.

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Casey & Lundregan, P.C.
71 Washington Street
Salem, MA 01970

Phone: 978-224-8893
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