By Elton John Bozanian
Partner
Partner
Handling a will contest in New Jersey requires careful consideration of legal procedures, evidence, and potential defenses. A will contest is a formal objection raised against the validity of a will. If you are involved in such a matter, it is important to either have an understanding of the process or to hire an experienced estate planning/litigation attorney. Some of the grounds for contesting a will and the steps to follow through on a will contest involve the following:
Possible Grounds For A Will Contest in New Jersey
- Lack of testamentary capacity: The testator (the person who made the will) did not have the mental capacity to understand the will’s implications. The testator must have had the mental capacity to understand:
- The nature and extent of their property;
- Who the natural objects of their bounty are (for example, who their family and other beneficiaries are); and
- What the will does.
- Undue influence: Someone exerted inappropriate influence over the testator to benefit from the will. If the testator was manipulated or coerced into making a will, or into making specific provisions in the will, that can constitute undue influence.
- Fraud: If the will was executed by deceptive means. For example, if the testator was lied to about the contents of the document they were signing or the circumstances surrounding it, that can be grounds for invalidation of the will.
- Forgery: The will or the signature is not genuine.
- Duress: Similar to undue influence, duress involves a testator being forced or pressured into making a will or specific provision under threat of harm.
- Improper Execution: For a will to be valid in New Jersey, it must meet specific requirements:
- Generally, it should be in writing (there are some exceptions for specific types of wills);
- It should be signed by the testator or by someone else at the testator’s direction and in their presence;
- It should be signed by at least two witnesses who witnessed the testator’s signature or the testator’s acknowledgment of that signature.
- Revocation: This refers to a situation where the will was revoked by the testator, possibly by creating a newer will or through a physical act like destroying the document. If someone presents an older will for probate and a later, valid will exists, the older will can be contested.
- Ambiguities: If the language in the will is unclear or ambiguous, interested parties might contest its interpretation.
Steps To Take For A Will Contest
- Timelines: In New Jersey, you typically have four months from the date the will is admitted to probate to file a contest if you reside within the state. If you reside outside of New Jersey, you generally have six months.
- Notice to Interested Parties: Before a will contest can proceed, all interested parties (for example, beneficiaries or potential heirs) must be notified. They have a right to be heard in the contest.
- Initiate the Will Contest: File a complaint with the Surrogate’s Court (in the county where the decedent resided) contesting the validity of the will.
- Discovery: This is the legal process where both sides gather evidence. It can include document requests, interrogatories (written questions), and depositions.
- Trial: If the matter is not settled during or after discovery, it will proceed to trial. Both sides present their evidence, and the court makes a decision.
- Alternative Dispute Resolution: Will contests can often be resolved through mediation or other alternative dispute resolution methods without going to trial. This can save both time and money.
- Potential Outcomes: If the contest is successful, the court can invalidate the entire will or just specific provisions. Depending on the circumstances, an earlier will may be reinstated or the estate may pass according to New Jersey’s intestacy laws.
- Considerations:
- Costs: Will contests can be expensive. Consider the potential costs against the potential gains.
- No-Contest Clauses: Some wills contain clauses that attempt to penalize beneficiaries who contest the will. The enforceability of such clauses can vary.
- Emotional Toll: Will contests can be emotionally draining and can strain or destroy family relationships.
- Hire a Qualified Attorney: This cannot be emphasized enough. An experienced attorney can guide you through the complexities, offer strategic advice, and advocate for your interests.
Takeaway
While the above provides a general overview, the specifics of your situation may introduce additional considerations. Always consult with an experienced estate planning/litigation attorney before making any decisions about contesting a will. Contact Bozanian McGregor to help navigate you through a will contest. You can trust that we will provide you with outstanding legal support and help you sort through your legal obstacles.