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May
13

Intend What You “Will…”

Konowitz & Greenberg recently represented the Executrix of an Estate in a Will contest filed by the adult children of the decedent, and successfully obtained summary judgment in favor of the Executrix, striking the objections to the Will. While the Court ultimately upheld the validity of the Will, the challenge created considerable expenses for the Estate, and the case highlights the importance of keeping your Will up to date and of making your wishes upon your death clear and unambiguous. Where your wishes are not clear, it will be left to the courts to try to determine your intentions and what you would have wanted.

In the case, Karen Greenberg, who was named Executrix by the decedent’s Will, asked the Probate Court to approve the Will, which had been prepared and signed in 1990. The Will left the bulk of the decedent’s multi-million dollar estate to several charities. The decedent’s children objected to the Will, arguing that the decedent had revoked her Will prior to her death and that the decedent should be found to have died intestate, or without a Will. Under the intestacy rules, the Estate would then have passed to the children.

In support of their claims, the children asserted that the decedent had told them on various occasions that she had revoked her Will, that she was planning to make a new Will, and that she had made a new Will. While no new Will was ever found, the original 1990 Will had “X” marks written in pencil through numerous paragraphs in the Will, including the paragraphs leaving the majority of the Estate to the charities. In addition, a post-it note was found by one of the children which read: “This Will is null and void. It is too old and no longer applies.” The child, however, could not recall where or when she found the note, or if it was with the Will.

The law in Massachusetts is very clear on the ways a Will may be cancelled or revoked. “Revocation is an act of the mind, which must be demonstrated by some outward and visible sign or symbol of revocation.” Worcester Bank & Trust Co. v. Ellis, 292 Mass. 88, 91 (1935). Specifically, revocation of a Will may be accomplished “by burning, tearing, cancelling or obliterating it with the intention of revoking it, by the testator himself or by a person in his presence and by his direction.” Id. Thus, two elements must be proved by the party challenging a Will’s validity: (1) an appropriate outward act by the testator, and (2) a simultaneous intent to revoke.

In asking the Court to grant a summary judgment dismissing the challenges to the Will, Konowitz & Greenberg argued that, even assuming the “X” marks were made by the Decedent and that the Decedent had written the post-it note, there was no evidence when the marks and note were written, why they were written or what the decedent’s intention was in making the writings. The Decedent had conversations with her attorneys over the years, including in 2001 and 2004, in which they had discussed the Will and the Decedent had expressly stated that she did not wish to make any changes to it. Given these facts, Konowitz & Greenberg argued that the children could not satisfy their burden at trial of proving that either the marks on the Will or the note were made by the Decedent with the intent of revoking her Will, or that the Decedent would have wanted to die intestate.

The Probate Court agreed, and entered summary judgment in favor of the Executrix, striking the objections to the Will filed by the decedent’s children, and finding that the provisions of the Will would be enforced.

The case is now on appeal. Stay tuned.