Challenging A Will: The Importance of The Affidavit of Objections
Here’s a pretty grim statistic from 2015:
On three separate occasions last year, a prospective client contacted me about assisting them in challenging a will, then decided to represent themselves. In each of these instances, the court ended up dismissing the challenge because the affidavit of objections didn’t meet legal requirements.
And yet, if those same prospective clients had retained an attorney to represent them, their challenges would likely have survived dismissal.
A person who decides to “go it alone” in their effort to challenge a will generally has at least one or two reasons for dispensing with an attorney: they either lack the funds or sufficient interest in hiring an attorney, or they believe that the process of preparing an affidavit of objections is simple and doesn’t require representation.
One’s personal finances can often be an understandable impediment to retaining an attorney for any court case. However, if finances are not an issue, then hiring an attorney to prepare an affidavit of objections is highly advisable.
When a “formal” proceeding to probate a will is filed with the Probate & Family Court, the court issues a “citation” that is then sent by the personal representative of the estate (or the estate’s attorney) to the heirs of the deceased as well as anyone named in the will. The citation contain a notice in bold letters that says that anyone who wishes to challenge either the content of the will or the nomination in the will of the personal representative must file both an appearance and an “objection”. The objection is in the form of an affidavit which must be signed under the pains and penalties of perjury and filed within 30 days of the appearance deadline in the citation.
The affidavit of objections is the single most important document in a will contest. Our rules of procedure and legal precedent established by our appellate courts require that the affidavit contain facts based on personal knowledge, or in regularly kept records, that, if found by the court at trial, would result in the will being declared invalid.
This process is more difficult than one might think, particularly for someone who is not trained in the applicable law. Consider the following example. Mary Smith wishes to challenge the will of her late father, John, on the grounds that he lacked sufficient mental capacity when he signed the will. Mary decided to prepare the affidavit of objections without the assistance of an attorney. In describing her father’s mental condition, Mary stated the following:
My father was diagnosed with dementia in 2014 and required care on a 24-hour basis.
To the untrained eye, this paragraph may appear to describe someone who lacks sufficient mental capacity to sign a will; a significant percentage of people would conclude that anyone who has dementia and requires round-the-clock care would not be in any position to understand a legal document. But the law says otherwise. Dementia, particularly in its early stages, does not generally prevent someone from understanding the consequences of legal actions. And we know from experience that someone might be under 24-care care for physical and not cognitive limitations.
Now consider the following more detailed description:
My father was diagnosed with dementia in 2014. When I visited him on his birthday, February 8, 2014, he said “Kathy” as I walked into his apartment. Kathy is my older sister. When I said “Happy Birthday, Dad!”, he responded “My Birthday? Today is Mom’s birthday.”
Notice how this paragraph provides a richness of important detail not seen in the prior version. Someone who cannot recognize a child or remember his/her birthday is likely lacking sufficient mental capacity to understand any kind of legal document.
An affidavit containing the first and shortened version of facts would likely be subject to a motion to strike the affidavit, and it’s highly probable that the court would allow the motion, thus resulting in the dismissal of the challenge. An affidavit containing the more detailed description would likely survive a motion to strike.
Other components of affidavit preparation are difficult to address without an attorney. In many instances a court will allow an extension of time to file the affidavit in order for the contestant to obtain documents that might allow him/her to submit a more detailed affidavit. However, the motion must set forth sufficient grounds for the extension. The affidavit also cannot contain “hearsay”, statement of what someone other than the deceased has said.
