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  • Writer's pictureAlexander J. Kemeny

When and How to Contest a Will in New Jersey

Updated: Mar 15

On What Basis May a Will be Challenged?

Last Will and Testament

The legal grounds for challenging a will encompass various reasons, with some of the most commonly invoked ones being:

1. Incapacity – If a court has previously declared the testator incapacitated, rendering them incapable of making a will, or if there is substantial evidence, such as medical records or testimony, indicating that the testator lacked the mental capacity to understand their actions when creating the will, the court may invalidate the will. However, establishing mental incapacity can be challenging, as the standard for mental capacity is relatively low, requiring the testator to grasp the property they are disposing of, the intended beneficiaries, and the distribution scheme.

2. Undue influence or coercion – Undue influence occurs when an individual uses mental, moral, or physical pressure to manipulate the testator, preventing them from acting in accordance with their true intentions. This is the most common basis for contesting a will and revolves around whether the testator made the will freely, without external coercion. For instance, a family member or acquaintance might push an elderly person into leaving the bulk of their assets to them while excluding others who would typically inherit. To prove undue influence, one must demonstrate that a beneficiary exerted such influence as to override the testator's genuine desires. Typically, the burden of proof falls on the person challenging the will, even when the testator was elderly or impaired during its creation. However, the burden can shift if the challenger can show a confidential relationship between the beneficiary and the testator, along with suspicious circumstances. Courts consider factors like old age, illness, control by the beneficiary, replacement of a prior will, favoring non-relatives, disinheriting family members, and the beneficiary's involvement in drafting the will when assessing undue influence.

3. Fraud – This ground involves determining if the testator was deceived into signing the will through intentional misrepresentation or the withholding of material facts that led to their signature.

4. Forgery – This claim centers on the alleged execution of a will by someone other than the testator.

5. Mistake – This inquiry involves whether the testator made the will based on misunderstandings about the document's nature, its contents, or any underlying facts. The burden of proof rests on the contestant to establish that the will does not reflect the testator's true intentions.

6. Material ambiguity – If the will's meaning is unclear or if there is "insufficiency of expression" necessitating the court to decipher its intended meaning, the will's validity is not in question, only the interpretation of its language. In such cases, the doctrine of probable intent can be used to override the plain wording of the will. The court determines the testator's probable intent by examining letters, prior wills, and the circumstances surrounding the will's creation.

7. Failure to observe formalities – A will may be challenged if the testator did not follow the formalities required for a legally valid will. However, strict adherence to these formalities is not always necessary for a court to accept a will. The court can decide that a handwritten and unwitnessed will is valid if it genuinely reflects the testator's intent.

8. Denial of a spouse's "Elective Share" – A surviving spouse is entitled to inherit at least one-third of the "augmented estate," irrespective of the will's provisions, unless the spouse expressly waived their share, or there is evidence of intent to divorce or actions by the surviving spouse contributing to the decedent's death.

Who is Allowed to Challenge a Will?

The initial requirement involves establishing the eligibility of the challenger, which means having a legally acknowledged interest in the will's terms. In general, two categories of individuals possess the necessary eligibility: those who are designated as beneficiaries in the existing will and those who would stand to gain if the will were declared invalid, such as someone named as a beneficiary in a previous will but saw their stake diminished or eliminated.

Furthermore, beyond having the requisite eligibility to contest a will, the individual must also demonstrate valid legal reasons for doing so. Unfairness alone does not suffice. With limited exceptions, the law permits individuals of sound mind, exercising their free will, to allocate their assets in virtually any manner they desire, even if this involves favoring one child over another, excluding a child, or bequeathing a significant portion of the inheritance to a second spouse.

When to Initiate a Will Contest?

Having the right to contest a will and valid grounds are just the initial steps. Meeting these foundational criteria doesn't necessarily guarantee a winnable case. Even with a strong case, the legal process of challenging a will in court can be both emotionally and financially taxing, often extending over months and occasionally even years. This underscores the importance of commencing the process with an initial consultation with an attorney well-versed in estate litigation. An experienced and knowledgeable estate litigation lawyer can help you evaluate whether pursuing a legal challenge makes sense from both financial and emotional standpoints.

Steps to Initiating a Will Contest in the State of New Jersey

Several procedural requirements must be considered. Firstly, a will contest should be filed in the state and county where the deceased person resided at the time of their passing. If the individual wasn't a resident of New Jersey, the will is generally not subject to probate or challenge in this state. Additionally, there are specific time limits for making claims against a will or the estate:

• To contest probate: Residents of New Jersey must file an action to contest the will 4 months of when the will was admitted to probate by the Surrogate. Out-of-state residents have 6 months to file the action.

• To assert a debt claim: Within 9 months from the date of death.

• To initiate a lawsuit for an elective share: Within 6 months after the appointment of a personal representative.

In New Jersey, uncontested estates are typically handled by the County Surrogate, who appoints executors and administrators. However, if a beneficiary brings a will contest or other legal action, it falls under the jurisdiction of the Superior Court, Chancery Division, Probate Part in the county where the decedent passed away.

There are two approaches to initiating a will contest:

1. Submitting a caveat with the Surrogate before the will is admitted to probate.

2. Directly commencing proceedings in the Superior Court, Chancery Division, Probate Part after the will has been admitted to probate by filing a Verified Complaint.

Hiring a New Jersey Estate Litigation Attorney

Selecting an attorney is a crucial decision, and it's advisable to choose one with expertise in New Jersey estate litigation. Estate litigation, like any other legal field, comes with its own unique complexities. An attorney experienced in this area is more likely to possess a deep understanding of the pertinent laws and procedures, enabling them to identify issues and build the strongest possible case.

Moreover, it's beneficial to choose an attorney with whom you feel comfortable working. Estate litigation can involve highly personal matters, and you may need to discuss sensitive issues with your lawyer. An attorney who actively listens to your concerns and maintains open communication can help alleviate some of the stress associated with the process.

When you have your initial conversation with an estate attorney, it provides an opportunity to gauge what it would be like to collaborate with them. It's crucial to ensure that you feel at ease conversing with them and sharing personal information, as this forms the basis of a trustworthy relationship. If anything seems amiss or if you detect any warning signs, it's advisable to seek out another attorney. Keep in mind that, depending on the scope of your engagement with an estate litigation attorney, you may be working alongside them for a considerable period, possibly extending to months or even years. Therefore, it is vital to locate a professional you can place your trust in right from the outset, someone who comprehends your unique circumstances and offers a compassionate ear while being attuned to your specific needs.

The estate litigation attorneys at Kemeny, Ramp & Renaud, LLC are available to assist you. Call us at (732) 853-1725 to schedule a consultation.


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