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In New Jersey, the two most common ways an individual may contest a will is to assert undue influence or incapacity at the time the will was executed. Undue influence means that the will does not reflect the wishes of the testator, but instead, they were persuaded or coerced by another person at the time the will was written. Incapacity means that the testator did not have the mental capacity to understand the amount of their property or to whom they were assigning it.
Other ways that a will may be contested include asserting fraud, forgery, or revocation. To prevail in a will contest based on fraud, the individual contesting the will must establish to the Court that the testator was defrauded into signing the document through intentional misrepresentation or concealment of a material fact which induced the testator into signing the will.
A will is effectively revoked if a new will is written, or the existing will contains a codicil (an addendum). A will may also be revoked by a subsequent divorce or marriage; or by an express act of destroying the will. Recent changes to the probate court also allow, under limited circumstances, an informal writing intended to be a will.
If the contesting party prevails in their action, the court may look to a previous will, or will effectively hold that the individual died intestate (without a will).
Estate litigation can be costly, time consuming, and emotional which is why it is necessary to have an experienced attorney who can help you decide whether contesting a will is a prudent decision for you and your family. The attorneys at Hunziker, Jones & Sweeney can help you make informed legal decisions. Call (973) 256-0456 or or fill out our contact form for a consultation.
Mediation has become an important step in the dispute resolution process in contested probate matters. Protracted probate litigation will be time-consuming and expensive as well as disruptive of family relationships. Such litigation often arises because a loved one has recently died or is not being appropriately cared for in the eyes of one or more of the litigants involved. Therefore, in the probate area, this type of litigation can be very emotional.
Mediation helps to resolve some of the stress and anxiety involved in these types of proceedings. Many cases are caused by what is perceived as simple lack of communication or perceived secrecy by one party. In many contested guardianship cases, the family dynamics are the driving force of the conflict. A mediator may be able to address family concerns, such as access to medical and financial information for the party who is not serving in the role of caretaker or guardian. Many times, these matters can easily be resolved once access or information is provided. Additionally, fostering continued access to the elderly ward or disabled party may also be important. A mediator may be able to resolve issues concerning visitation by establishing parameters for visits in the caretaker's home or outside of it.
If a will is contested, the courts typically utilize mediation once a limited amount of discovery has taken place. After paper discovery and before depositions have been taken, the attorneys and their clients may have enough information available to them to discuss the merits of the case. Mediators who are experienced in probate matters are able to help negotiate and structure a resolution that will benefit all parties.
If you have a contested probate matter, contact an attorney who has the skills and experience in this area. The attorneys at the Law Offices of Hunziker, Jones & Sweeney have years of experience handling mediated probate matters. Call (973) 256-0456 or or fill out our contact form for a consultation.