You have spent time and money creating an estate plan that reflects your wishes. But what happens when a family member decides to challenge it?
Will contests and trust disputes are more common than most people expect, and they tend to arise in predictable situations: when one child receives more than another, when a new spouse is perceived as having influenced the plan, when a family member is disinherited, or when a late-in-life change to the plan catches people off guard.
The good news is that Massachusetts law provides several tools to protect your estate plan from hostile challenges. The key is using them proactively, while you are still able to make decisions and document your intentions.
How Estate Plans Get Challenged in Massachusetts
In Massachusetts, a will can be contested during the probate process by filing an objection with the Probate and Family Court. The most common grounds for contesting a will or trust include:
- Lack of testamentary capacity. The challenger argues you did not understand what you were doing when you signed the documents. This often arises when the person was elderly, had a dementia diagnosis, or was on medication at the time of signing.
- Undue influence. The challenger claims someone pressured or manipulated you into making decisions that benefited them. This is frequently alleged against caregivers, new spouses, or one particular child.
- Fraud or forgery. The claim that the documents were signed under false pretenses or that signatures were forged.
- Improper execution. Massachusetts requires a will to be signed by the testator and attested by two witnesses under M.G.L. c. 190B, § 2-502. If the execution formalities are not followed, the will can be invalidated.
Strategies to Fortify Your Estate Plan
- Document your mental capacity.
If you anticipate a challenge based on capacity, the single most powerful step you can take is to have a capacity evaluation performed by a physician at the time you sign your documents.
A written medical opinion stating that you understood the nature and extent of your assets, who your beneficiaries are, and what your documents do creates a contemporaneous record that is difficult to overcome in court.
Your attorney can also create a detailed memo of the meeting, documenting the conversation, your reasoning, and your expressed wishes. This is not legally required, but it creates an evidentiary record that supports the validity of your plan.
- Use a no-contest clause.
A no-contest clause (also called an in terrorem clause) provides that any beneficiary who challenges the will or trust forfeits their inheritance. Massachusetts courts have generally upheld these provisions, though enforcement depends on the specific language and circumstances.
The clause works best when the potential challenger stands to receive something meaningful under the plan. If they are disinherited entirely, they have nothing to lose by challenging, so the clause has no deterrent effect.
A strategic approach is to leave the potential challenger a modest but real inheritance, with the no-contest clause making it clear that challenging the plan risks losing even that.
- Use a revocable living trust instead of (or in addition to) a will.
Trust-based plans are harder to contest for several reasons:
- Trusts do not go through probate, so there is no public proceeding and no automatic notification that invites challenges.
- The standard for contesting a trust is generally more demanding than for contesting a will.
- Trusts can be funded and operational during your lifetime, which creates a track record of your intent.
- There is no formal court hearing where a disgruntled family member can appear and object.
- Name strong, independent fiduciaries.
The people you name as trustees, personal representatives, and agents under your power of attorney should be individuals who will carry out your wishes firmly and without being swayed by family pressure.
If family dynamics are particularly volatile, consider naming a professional fiduciary, such as a bank trust department or a licensed fiduciary, who has no personal stake in the family relationships.
- Communicate your plan while you are alive.
Surprises fuel disputes. If a family member is going to be unhappy with your plan, it is better for them to hear it from you directly than to discover it after you are gone.
You do not need to share every detail, but explaining the reasoning behind your decisions, such as why one child receives a trust and another receives an outright distribution, can defuse resentment and reduce the likelihood of a challenge.
- Keep your documents current.
An estate plan that was last updated 15 years ago is more vulnerable to a challenge than one updated within the last year.
Regular updates demonstrate ongoing engagement with your plan and make it harder to argue that the plan reflects outdated intentions or was the product of a single moment of confusion.
- Avoid DIY documents.
Online will templates and form documents are particularly vulnerable to challenges. They may not comply with Massachusetts execution requirements, they often contain ambiguous language, and they create no record of the circumstances under which they were signed.
If your estate is large enough or your family dynamics are complicated enough to worry about a challenge, the documents need to be prepared by an attorney.
Special Considerations for Second Marriages and Blended Families
Will contests are disproportionately common in blended families. Children from a first marriage may resent a new spouse. A new spouse may feel that their interests are being subordinated. Step-siblings may have competing claims.
In these situations, additional protections are warranted:
- Use a QTIP or other marital trust to provide for your current spouse while preserving assets for children from a prior marriage, as we discuss in our article on why standard wills fail blended families.
- Make sure your beneficiary designations on retirement accounts and life insurance are consistent with your trust and will.
- Consider a prenuptial or postnuptial agreement that addresses estate planning expectations.
- Name independent, professional fiduciaries if family members cannot be trusted to act impartially.
- Document your reasoning for any unequal distributions in a separate memorandum.
When a Challenge Is Already Happening
If you are the personal representative or trustee of an estate that is being contested, act quickly. Preserve all documents, communications, and records related to the plan. Engage an attorney who handles probate litigation in Massachusetts. Avoid making distributions until the challenge is resolved or the court provides direction.
Build a Plan That Holds Up
The best defense against a hostile challenge is a well-drafted, well-documented, and well-maintained estate plan.
At The Law Offices of Kimberly Butler Rainen, we build estate plans for Massachusetts families that are designed to withstand scrutiny. If you are concerned about a potential challenge or if you want to make sure your plan is as strong as possible, we are here to help. Contact us to protect your estate plan.