File a Timely Appearance with The Court

If you are an heir at law--typically a child, parent or sibling--you will receive notice by certified mail that the decedent has died and has left a will. The notice will identify the name of the executor/executrix and will indicate that if you wish to object to the will, you must file an appearance with the court by the date set forth in the notice. This deadline is firm and late filings are rarely permitted. You need only file a document identifying the name of the case, the docket number, with a title "Notice of Appearance". You need to sign it and set forth your residential address and telephone number. You do NOT need an attorney to sign or file this notice on your behalf, and the court does not charge a fee for the filing of the notice.


File an Affidavit of Objections

Within 30 days of filing a notice of appearance, you must file with the court a document known as an "affidavit of objections". This is the document in which you set forth the basis for challenging the will. The affidavit has three requirements: (a) it must be signed under the pains and penalties of perjury; (b) it must set forth a legal basis for challenging the will (the three primary reasons being undue influence, lack of mental capacity, or forgery); and (c) it must be based on your personal knowledge. So, for example, if you believe the will was the product of undue influence, you might state that "My brother managed my mother's finances. and added his name to her bank accounts My mother relied upon him for advice in financial matters." The court likewise levies no charge for this filing.


Serve Written Discovery and Take any Depositions within The Court-Established Discovery Period

In most courts the filing of the affidavit of objections will result in your receiving a notice from the court setting forth the period during which you can conduct what is known as "discovery", the phase of the case when the parties have the right to acquire facts from one another. The discovery period for will contests is typically about four to eight months. During this period you can send the executor or executrix (who defends the will) or his or her attorney a request for production of documents, or interrogatories (written questions). These requests must be drawn carefully; it is best to secure the assistance of an attorney for this step. Following written discovery it is customary for the parties or their attorneys to take depositions (an examination under oath, before a court reporter).


Consider Alternative Dispute Resolution

Most will contests are characterized by extraordinary levels of bitterness. These cases are divisive and often destructive of otherwise close family relationships. While the very initiation of a will contest is likely to cause irreparable damage to any relationship, the amount of the "collateral damage" can often be minimized by a settlement (technically known as a "compromise"). Parties can often reach a settlement through mediation, a process in which the parties present their positions to a neutral such as a retired judge, whose objective is to facilitate a settlement. All settlements of will contests are subject to approval of the court. However, the court rarely rejects a compromise that has been the product of negotiation by the parties.


Try to Secure a Shift in The Burden of Proof

Massachusetts is one of a handful of states that shift the burden of proof in will contests alleging undue influence if certain facts are established. Our law provides that if the person benefiting from the a change in the decedent's will was a "fiduciary" with respect to the decedent, then the burden shifts to the executor/executrix to show that the change in the will was NOT the product of undue influence. The question of whether the party benefiting from a change in the will is a fiduciary is complex, but often focuses on the control exerted by that person over the finances and/or medical care of the decedent, or the process by which the will was amended. The importance of this "burden shifting" cannot be underestimated. Since will contests are tried by judges and not juries, the court will decide the case using the appropriate burden of proof.