How do my children contest my dead ex-husband’s Will?

My ex-husband died 3 months ago. We had 4 children together.None of my children were including in the Will and 2 of them want to contest it. We have a copy of the death certificate but not the Sill.

Asked on July 5, 2017 under Estate Planning, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

They contest it by filing a lawsuit in chancery court (a part or division of county court) against your ex-husband's estate and also the executor of the estate. Bear in mind that it is legal to disinherit your children; there is no law saying that someone must leave anything to his children. So the fact that they were left out does not provide, by itself, any basis for a challenge. Rather, the will may only be successfully challenged if there is evidence to show that one or more of the following occured:
1) Your ex-husband was not mentally competent when he created the will.
2) The will was not properly signed or witnessed.
3) Your husband's signature was forged.
4) Your husband was forced to create the will by threats of violence or other illegal/criminal acts.
5) The will was created by fraud or trickery: e.g. they showed him will 1, which was what he wanted, then did a "bait-and-switch" and had him actually sign will 2, which had different provisions.
6) Your husband was essentially housebound or bedridden when he created the will, and his primary caregiver used his or her control over him, power over him, and unparalleled access to him to exert "undue influence" and basically "overpower" his own intentions and get him to sign a will in the caregiver's interest.
Otherwise, the will be valid, even if it disinherits children.
Ideally, anyone seeking to challenge a will should hire a probate attorney to help them, but your children may legally do it themselves; they can contact the court clerk's office and/or go to the court website to get instrutions and possibly sample forms.


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