Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.

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Massachusetts Capacity Evidence in Will and Trust Contests

 

INTRODUCTION 

Litigation contesting the validity of wills and trusts on grounds of alleged incapacity and/or undue influence has been on the rise for many reasons, including “the growing number of Americans who are living through the age of risk for dementing illnesses, such as Alzheimer’s Disease,” Sparr, Assessing Competency To Make A Will, Am. J. Psychiatry, 149:169-174 (1992), as well as the prevalence of blended and geographically dispersed families.  The cases present common factual scenarios.  According to one study:

The typical profile for retrospective challenges to testamentary capacity included a radical change from a previous Will (72%), where undue influence was alleged (56%), in a testator with no biological children (52%), who executed the Will less than a year prior to death (48%).  Co-morbid conditions were dementia (40%), alcohol abuse (28%) and other neurological/psychiatric conditions (28%)….

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