Wills are often written – or rewritten – under questionable circumstances, especially if the person who has died was ill, isolated, or dependent on a caretaker other than their spouse. If you feel unfairly treated by a will that was written in suspicious circumstances, you may have grounds to challenge it.
The procedure for challenging a will in New Jersey is not complicated, but overturning a will requires solid evidence and testimony – and knowledgeable legal assistance. Steven Vanderlinden of Howard Law LLP in Hackensack recently noted “if you’re an interested party, but you’re not receiving your due and you have evidence of impropriety, an experienced lawyer can help you obtain justice.”
This article generally explains the basics of challenging a will to help you make an informed decision about how to proceed, but it cannot take the place of a consultation with a lawyer who handles these types of cases. This article is not intended to give legal advice as to your case or to offer any opinions about your particular case.
Who can contest a will, and what are the allowable grounds?
In order to challenge a Will, the first requirement is that the challenger have standing – that is, a legally recognized interest in the terms of the will. Generally speaking, two kinds of people have the required standing:
- Beneficiaries who are named in the current will; or
- A person who would receive a benefit if the will were invalidated, such as a beneficiary named in a prior will whose interest was reduced.
Even if a challenger satisfies the standing requirement, he or she must also have legal grounds to contest a will. Unfairness by itself is not enough as the law allows a person of sound mind who is exercising his or her free will to distribute his or her assets in almost any way they wish, even if that means giving more to one child, or leaving a child out, or giving the a large portion of the inheritance to a second husband or second wife. The law recognizes at least six principal grounds for contesting a will (other grounds also exist but are less frequently present):
- Undue influence or coercion – Defined as, “the substitution of the will of another which the testator is unable to resist or overcome” [In re Livingston’s Will, 5 N.J. 65 (1950)], this is the most common reason for contesting an otherwise valid will. If you can establish a “Presumption of undue influence” by proving either a confidential relationship of trust and dependence or suspicious circumstances such as excluding others and concealment, then the burden of proof is effectively shifted to the defendant.
- Incapacity – If the testator had been declared incapacitated by a court, then he or she cannot make a will. Even in the absence of such a declaration, if evidence (such as medical records or testimony) shows that the testator could not understand what he was doing at the time of making the will, then the court can set aside the will, but this avenue is difficult, as the threshold for mental capacity is low – even lower than that required for an ordinary contract. The testator need only “comprehend the property he is about to dispose of; the natural objects of his bounty; … and the distribution that is made.” [In re Livingston’s Will, 5 N.J. 65, 73 (1950)]. However, if a guardian was appointed for incapacity before the testator wrote the will, the document is invalid.
- Forgery, fraud or mistake – If the signature on the will appears to be a forgery, or if evidence indicates that there was a misrepresentation that misled the testator or the testator did not understand that he was making a will, the will can be challenged.
- Material ambiguity – If the meaning of the will is unclear, or there is “insufficiency of expression” that requires a court to determine the meaning of the will. In this instance, the validity of the will is not at issue, only the meaning of the words used in the will. In such a case, the doctrine of probable intent can be applied to supersede the plain meaning of the words used in the will. The testator’s probable intent is determined by the court’s review of letters, prior wills, and the circumstances surrounding the making of the will.
- Failure to observe formalities – If the testator has failed to observe the formalities that make a will valid on its face, the will can be challenged but strict adherence to the legal formalities is not necessarily grounds for a court to reject a will. The court has the authority to determine that a handwritten and unwitnessed will is nevertheless a valid will as a bona fide reflection of the testator’s intent.
- Denial of a spouse’s “Elective Share” – Under state law (N.J.S.A. 3B:8-1) a spouse of a decedent is entitled to inherit at least one-third of the “augmented estate” regardless of the will’s provisions – unless the spouse expressly waived his or her share, or the evidence shows an intent to divorce or the surviving spouse’s actions are responsible for the decedent’s death.
The above discussion is only a starting point as it can be one thing to be an interested party with standing and legitimate grounds to challenge a will; but it can be another to have a case that is winnable. That is why it’s important to start by having an initial consultation with a lawyer who is experienced in estate litigation. He or she can provide a dispassionate assessment of your case, to help you decide what to do and whether it is worth your while to go forward.
Steps to contesting a will
The law also imposes several procedural requirements for any will contest.
A will must be challenged in the state and county in which the decedent lived at the time of death. If it’s not New Jersey then, almost always, the will cannot be probated or challenged in this State.
State laws also set time limits for making claims against a will or the estate:
- To challenge probate: 4 months from the executor’s date of appointment if a NJ resident, 6 months if out of state
- To present a claim on a debt: 9 months from date of death
- To file suit for an elective share: 6 months after the appointment of a personal representative
In New Jersey, the County Surrogate generally handles uncontested estates and appoints executors and administrators. If a beneficiary brings a will contest or other legal proceeding, such a case is handled by the Superior Court, Chancery Division, Probate Part, in the county where the decedent died.
If you decide to proceed, there are two ways to begin a will contest:
- File a motion called a “caveat” with the Surrogate prior to the filing of the will.
- File a proceeding directly in the Superior Court, Chancery Division, Probate Part after the will has been admitted to probate.
Filing a caveat prevents the Surrogate from admitting a will to probate but that’s all. If you want things to move further you have to file a suit in the Superior Court, which is where the will contest will lie.
At that point, you and your attorney will have to gather evidence and testimony to support your claim. For example, if someone is challenging a parent’s will on the grounds that a caretaker coerced the testator into leaving them a large portion of the estate, no matter how suspicious it may look, the authorities are not likely to investigate except in rare case. The challenger will have to look for documents such as bank transfers and other that caretaker. So if you are considering challenging a will, be prepared to spend a fair amount of time dealing with the case – and get the assistance of a qualified attorney you can trust to give your challenge the attention it will need to be successful.
What are some important terms and phrases to know?
A will that is valid on its face – A will that is signed by the testator along with notarized a self-proving affidavit signed by the testator and two witnesses that they saw the testator sign will.
Accounting – A proceeding in which the executor identifies the assets and income of the estate and accounts for all disbursements he or she made in administering the estate.
Beneficiary – A person who is specified to receive a distribution from a will.
Estate – The property, possessions, and assets owned by the testator that pass through probate.
Executor – The person or institution appointed by the testator to carry out the terms of the will.
Holographic will – A signed document with material provisions in the testator’s handwriting, but not witnessed.
Intestacy – Where there is no will, and letters of administration are to be issued to a qualified family member or friend to serve as administrator of the estate.
Last will – A testator’s written plan for the distribution of property and assets following his or her death.
Letters testamentary – Written authorization issued by the Surrogate for the executor named in the will to administer the estate.
Probate – The legal process of administering an estate.
Residuary estate – Assets left in an estate after all specified gifts are bequeathed and debts, taxes, administrative costs, probate fees and legal costs are paid.
Superior Court, Chancery Division, Probate Part – The court where estate disputes are determined, including will contests.
Testator – A person who has made a will.
Will contest – A dispute over the validity of a will or the meaning or intent of its contents.
Additional Frequently Asked Questions:
Can you prevent someone from contesting a will?
No. Any interested party can file a caveat with the surrogate court to stop the will from being entered into probate, or file suit in the Superior Court where the case will be heard. But proving the case may be difficult, and alleging the necessary legal elements can be a pitfall for the inexperienced.
Is contesting a will worth it?
The process of contesting a will can be costly and many contests are unsuccessful – but in some cases a challenge is both warranted and winnable. The best way to determine if a contest is worth your while is by consulting with an experienced lawyer who has litigated will contests in New Jersey.
Can a relative challenge a will?
Not every relative has standing (as discussed above). For example, even though a sibling feels aggrieved, they may not have a stake in the will if the decedent had surviving children.
About the Author
Thomas S. Howard is a founding partner of Howard Law LLP, Steven Vanderlinden is the senior litigation associate. Tom is Certified by the Supreme Court of New Jersey as a specialist in civil litigation.
Howard Law LLP is a Hackensack, NJ based law firm whose attorneys concentrate on estate and probate litigation, including will contests, as well as nursing home neglect, medical malpractice, and substantial business disputes. If you have questions about contesting a will or any other form of probate litigation, please call us at (201) 488-4644.