Will Contests

Grounds for a Will Contest

In New Jersey, the typical basis for challenging a probated Will or filing a Caveat against probate and administration are as to the execution form as to the Will, fraud, revocation of the will, forgery, lack of testamentary capacity or undue influence. Most often, it is based on anger at the terms of the Will, particularly being left out of an estate plan, or a new Will that is signed just before death with unexpected terms.

In New Jersey, the focus is on whether the purported will meets the statutory requirements as to form and execution. The actual form of a Will is less of an issue with the amendments to the Probate Code in 2005. Basically, any document or series of documents, signed by the decedent, which illustrates an intention by the decedent to make a testamentary disposition of his or her assets can be admitted to probate.

In order to establish a fraud upon the testator, the objectors must establish to the satisfaction of the Court that a testator was defrauded into signing a document, through intentional misrepresentation or concealment of a material fact which induced the testator to sign the Will.

It is often alleged that the testator lacked capacity to make a Will. In order to do a Will, the testator must understand (a) the amount and nature of his or her property, (b) who the family members and loved ones are who would ordinarily receive such property, and (c) how the will disposes of such property. In these types, especially where the Will was prepared by an attorney, the scrivener of the Will often becomes a critical witness on behalf of the Estate. Medical information is also vital to corroborating or disproving the claims of lack of testamentary capacity.

The objector to the Will alleging revocation must establish that Will has been revoked by the testator, either by (a) the execution of a new will or of a codicil, (b) a subsequent divorce or marriage, or (c) an express act.

Undue influence is a legal term that essentially refers to 'mental, moral or physical persuasion which has so destroyed the free agency of a testator that the testator can not follow the dictates of his own mind.' Often, undue influence challenges contain allegations of coercion by another person or persons. Most typically, the allegations surface one family member is favored above every other family member or when a stranger to the testator benefits considerably from the decedent.

If you have any concerns about the terms of a Will, you should contact an attorney who is skilled and experienced in this area. There are significant time limitations on challenging a probate will and time is of the essence when filing a caveat. The lawyers at Hunziker, Jones, & Sweeney have the skills and experience to help you in these matters and welcome your inquiries.

For more information, contact us at info@hjslawoffice.com