Legal Question in Wills and Trusts in Massachusetts

Father dies in 2004, leaves will and deed for home in his name only. Mother lies to 3 adult children saying that MA State is going to take the home because father put house in wrong trust so she needed to change trust immediately to save home. All 3 heirs sign off believing mother and don't want her thrown out on the street. None of them ask what they are signing, to see the will or what their rights are under probate law, they just want mother safe. Mother probates will (2004), puts house in her name and trust(2005). Now we find out that father made a codcil, had it notorized & witnessed prior to death in the presence of his wife. The codcil assigned 1 son (that has been living with them for past 10 years and taking care of them) a life tenancy. Son promises father he will take care of mother after father dies and mother assures son that he can live there for the rest of his life. Over the next three years son rebuilds half of home that was rotting and takes care of hiss mother. As soon as the construction is done mother tells son that it is time that he moves out and gets a place of his own and she changes the locks on the house. Now 9/2009 mother admits in front of witnesses that the codcil existed and she withheld it from probate court. This codicil was notorized by a MA Notary and witnessed. Has the will be probated by fraud or trick? Please HELP! What can son do????


Asked on 9/26/09, 2:31 am

1 Answer from Attorneys
Alan Fanger Alan S. Fanger, Esq.

Thanks for your question. I am sorry to hear about your situation. Stated simply, where someone dies and their will cannot be located, there is a presumption in the law that the person making the will destroyed the will and did not intend it for that will to have any effect. However, that presumption can be rebutted by evidence as to when the will was made, the circumstances under it which was made, and who was present when it was signed, among other things. In this instance I would think if your dad went to an attorney to have the will prepared, that attorney would have given you a copy of the will. If that has not occurred, you would have to rely on the testimony of the witnesses you described in your posting. If those witnesses are "interested" in the outcome of the case, their testimony would be appropriately discounted. In short, you have a difficult though not impossible task. Please see my website and blog on estate and trust litigation at www.lawfang.com and contact me if you wish to discuss the matter further.

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Answered on 10/01/09, 8:22 am


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