If you have executed a Last Will and Testament, you undoubtedly did so because you want your wishes regarding your estate assets to be honored after you are gone. A Will contest, however, could result in the invalidation of your Will. The attorneys at Legacy Care Law Firm explain several proactive steps you can take when drafting and executing your Will that can help prevent a Massachusetts Will contest.
- Work with an Experienced Estate Planning Attorney. One of the most important steps you can take to prevent a Will contest is to work with an experienced estate planning attorney who is familiar with Massachusetts law. An attorney can help ensure that your Will is drafted in compliance with all legal requirements, which is critical because even minor errors can provide grounds for a Will contest. Your attorney can also advise you on the best ways to structure your Will to avoid potential disputes among your beneficiaries.
- Clearly State Your Intentions. A Will contest often arises when beneficiaries or potential heirs believe that the decedent’s true intentions were not accurately reflected in the Will. To reduce this risk, it is important to clearly state your intentions in your Will and other estate planning documents. This includes not only specifying who will receive your assets, but also explaining any decisions that might be viewed as unusual or unfair. For example, if you choose to leave a larger share of your estate to one child over another, you should include a clear, written explanation for this decision within the Will.
- Include a No-Contest Clause. In Massachusetts, including a no-contest clause in your Will can serve as a deterrent against potential challengers. A no-contest clause, also known as an in terrorem clause, stipulates that any beneficiary who attempts to contest the Will forfeits their inheritance if the contest is unsuccessful. While this clause cannot prevent someone from challenging your Will, it can discourage frivolous or vindictive challenges.
- Demonstrate Testamentary Capacity. One of the most common grounds for contesting a Will is the claim that the testator lacked the mental capacity to make informed decisions at the time the Will was executed. To prevent such challenges, it is important to demonstrate that you had testamentary capacity when you created your Will. This means that you understood the nature of your assets, the identity of your heirs, and the legal effects of your decisions. To document your testamentary capacity, consider having a medical professional evaluate you at the time the Will is drafted and executed and provide a written statement attesting to your mental competency.
- Avoid Undue Influence. Undue influence occurs when someone exerts pressure on the testator to create or alter a Will in a way that benefits them at the expense of other rightful heirs. To reduce the risk of a Will contest based on undue influence, it is important to take steps to avoid even the appearance of impropriety. For instance, ensure that no potential beneficiary is present during your meetings with your attorney or during the signing of the Will. It is also advisable to avoid making major changes to your Will while under the care of someone who stands to benefit from those changes.
- Regularly Update Your Will. An outdated Will is more likely to be contested, particularly if your circumstances have changed significantly since it was created. To prevent this, you should review and update your Will regularly, especially after major life events such as marriage, divorce, the birth of a child, or the acquisition of significant assets. Each time you update your Will, make sure to clearly revoke all previous versions. Your attorney can help you do this in a way that leaves no doubt as to which version of your Will is the most current.
- Communicate with Your Heirs. Open and honest communication with your heirs can go a long way toward preventing a Will contest. If your beneficiaries understand your decisions and the reasoning behind them, they may be less likely to challenge your Will after your death. While these conversations can be difficult, particularly if you anticipate that some heirs may be disappointed by your decisions, addressing potential conflicts head-on can prevent misunderstandings and reduce the likelihood of a contest. Consider discussing your estate plan with your heirs, either individually or in a family meeting. This can be an opportunity to explain your choices and address any concerns they might have. In some cases, it may also be helpful to put your reasoning in writing, either within the Will itself or in a separate letter to your heirs.
- Ensure Proper Execution of Your Will. A Will that is improperly executed can be easily contested on procedural grounds. To ensure that your Will is legally valid, it must be signed in accordance with Massachusetts law. This typically means signing the document in the presence of at least two witnesses who are not beneficiaries under the Will. These witnesses must also sign the document in your presence. Your attorney can help you ensure that all formalities are observed during the execution of your Will.
- Consider Using a Trust. In some cases, using a trust instead of a Will can help prevent disputes among your heirs. A trust is generally more difficult to contest than a Will because it takes effect during your lifetime, allowing for greater control and oversight. By placing your assets in a trust, you can reduce the likelihood of a Will contest while also providing for a smoother and more efficient transfer of your assets. There are various types of trusts available, and your attorney can help you determine which one is best suited to your needs.
- Store Your Will Safely. Finally, it is important to store your Will in a safe place where it can be easily located after your death. If your Will is lost or destroyed, it may be difficult to prove its existence or contents, which can lead to disputes among your heirs. Instead of storing your Will in a safe deposit box, leave an original copy with your attorney and/or with your chosen Executor. While your safe deposit box may be safe for other documents, your Executor will not be allowed to access the box without your Will that proves he/she is the designated Executor of your estate.
By taking these steps, you can significantly reduce the risk of a Will contest and help ensure that your wishes are honored after your death.
Can We Help You Prevent a Massachusetts Will Contest?
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the steps you can take to help prevent a Massachusetts Will contest, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
Attorney Daniel A. DeBruyckere has been practicing law in New Hampshire and Massachusetts since 1998, and has helped hundreds of clients with their estate planning and elder care issues. He is very well respected in the area of estate planning, probate, trust administration, elder law issues, and business planning Read More!
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