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Will Contest

Have you been left something in a will or a trust by a family member or friend?  If someone believes that you are not entitled to this inheritance, they would be contesting a will.  For purposes of this article, will and trust are used interchangeably.  A will is a document that allows people to leave certain personal belongings and even real estate, to their family members or friends.  However, sometimes people disagree with what they were left or why they were not included and argue that the distribution should be changed or the will invalidated entirely because it was not actually what the deceased wanted.  This is a will contest.

The person who the will belongs to is the testator or testatrix and the people intended to receive something from the will or trust are the beneficiaries.  Wills are prescribed in each state to be valid if they follow certain execution requirements.  In New Hampshire, a will is valid if done in writing, signed by the testator, properly attested to, and signed in front of two witnesses.  RSA 551:2.  This is similar to Massachusetts procedure.  MGL ch. 190B, § 2-502.  Witnesses in both states must sign the will, and be uninterested, which means they are not beneficiaries of the will.  This is a requirement because if one of the witnessing parties aids in validating a will that gives them a share in the estate, it could be easily contested by another beneficiary who claims the interested witnesses swayed the testator to give them a share in the will.

A requirement of New Hampshire and Massachusetts is that the testator be of sound mind and executed the will without being under any threat, undue influence or duress.  This requirement can also result in a will contest claim because a family member could try to argue that their elderly parent, for example, was unduly influenced by a younger caretaker that knew of the parent’s wealth and coerced them to leave everything to the caretaker.  Or, for example, one child is given everything from his parents, while the other child is cut out of the will entirely.  Although cases are not always this extreme, distribution of one’s estate can be widely contested by the beneficiaries because testators are given wide range to decide how they want to distribute their estate and to whom.

No matter what the claim may be, the first step in contesting a will arises first out of probate.  When the testator dies and has a will, the will then goes through probate where the executor, or designated person in charge of distributing the estate per the will’s wishes, distributes the deceased’s estate.

First, whoever is bringing the suit to contest the will must have standing to bring the suit.  Standing means that the party involved in the lawsuit will be personally affected by the outcome of the case.  Therefore, even if someone does not have a will, there are intestacy laws that dictate where, and to who, the deceased’s estate would go and those people would also have standing.  Next, the challenger must also file a timely complaint contesting the will, which varies per state.  In New Hampshire the complaint must be filed within six months that the will was allowed by the court.  In Massachusetts, once a will has been filed for probate, copies are sent to all of the beneficiaries and they have 30 days to send any objections to the will.  Next the opposing party will respond with an answer and if the parties cannot come to an agreement on their own or through mediation, a trial will occur.  The trial will focus on the intent of the testator in making the will.

Will contests can be difficult because there is a presumption that if there was a will, that the testator took the time and knew what he or she was doing when drafting it.  However, if a party can invalidate the will by, for example, stating that one of the witnesses was interested or the testator never signed the will, the will could be invalidated because of its lack of the formal execution requirements explained above.  The mental state, or testamentary capacity, that a person must have in order to execute a will is also very low.  Testamentary capacity in both New Hampshire and Massachusetts simply requires that the testator knew at the time of signing his or her will what she had in her estate, who she wanted it to go to, and an understanding of that process of its transfer.

During the trial witnesses may be called and questioned and are asked to testify to the testator’s intent as to why they wanted to draft their will or what they had said about its distribution.  If a judge believes the Defendant has overcome the presumption that the will was valid or reflects the testator’s intent, the burden falls on the Plaintiff to then show that the will in question is an accurate reflection of the testator’s wishes.

Smith-Weiss Shepard Kanakis & Spony, P.C.

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Located on Factory Street in downtown Nashua, New Hampshire for over 45 years, Smith-Weiss Shepard Kanakis & Spony, P.C. offers nearly 100 years of combined legal experience.  Our experience and practical advice inside and outside of the courtroom will guide you and allow you to achieve results for all of your legal matters. Our attorneys practice law in the states of New Hampshire and Massachusetts and before the United States District Court for New Hampshire and Massachusetts. 

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