I discovered that there was a new will executed last year

uestion: My recently deceased husband and I lived in Massachusetts. I was his second wife, but we were happily married for many years (over 20) and our wills originally named each other as the sole beneficiary of the other’s estate. In the last few years, as my husband suffered from cancer, he turned to his son-in-law by his daughter from his first marriage to help manage his finances. The son-in-law, Roger, was also a partner in his accounting firm, so it seemed like a natural choice. Roger took over almost all aspects of our finances. When my husband passed away, I discovered that there was a new will, executed last year, which leaves the house to Roger and his wife and just gives me a life estate in it. I didn’t know about this will, and I think Roger helped my husband get the attorney and draft it.  Also, all of my husband’s other assets are placed into a trust which Roger will manage. Roger is supposed to pay out enough to me for me to live on, but when I pass, Roger and his wife get whatever’s left in the trust. Do I have a good chance to challenge this will?

Response: You probably do have a good chance to challenge.  In Massachusetts, wills can challenged on the basis of “undue influence,” which has four factors: (1) an “unnatural disposition” of the assets (2) by a person susceptible to being influenced by another person, when (3) that other person had the opportunity to exercise undue influence; and finally (4) the influencer used his or her opportunity to in fact change the disposition of the assets to his or her advantage.

To begin with, as someone who was managing your deceased husband’s finances—and who was a partner in his firm—Roger clearly fulfilled factor (3). And since your husband was relying on Roger, factor (2) was also probably met. Since the new undue influence will is a substantial change from the old will, it may also be the case that (1) is met—an “unnatural disposition.” At the least, there’s enough there to state a case for (1). That leaves factor (4), or showing that Roger did use his opportunity and influence to change the will to his benefit.

Fortunately for you, instead of the burden being on you to show that Roger used undue influence—which is usually the case when wills are challenged—the burden will be on Roger to show that he did not use undue influence. That’s because Roger’s position as trustee (managing the trust) means that he’s a fiduciary, or someone with a special moral and legal obligation. In some states, like Massachusetts, “the fiduciary who benefits in a transaction . . . bears the burden of establishing that the transaction did not violate his obligations.” Cleary v. Cleary, 427 Mass. At 295.

Since therefore this will involves a benefit to a fiduciary, you should be on good grounds to challenge it.

Answered by Steven Sweig

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