legal will and pen

A will directs how one’s estate should be distributed after a person passes away.   Ordinarily, a will is admitted to probate and the wishes of the decedent are followed without issue.  However, there are occasions where the validity of the will is questioned by family members or potential beneficiaries.    

A will contest is a formal objection raised against the validity of a will. The objection is often based on the position that the person making the will (the “testator”) did not understand what he or she was doing or coerced by someone to make the will in a manner that did not reflect the testator’s intentions. 

In general, there are three grounds for challenging a will.   (1) The will was signed improperly and not in compliance with the statutory requirements; (2) the testator lacked the testamentary capacity to execute the will; and (3) the will was the product of undue influence.  

 New Jersey recognizes writings intended to be a will.  As such, it is difficult to invalidate a will because it may have been executed improperly.    It is also difficult to invalidate a will for lack of testamentary capacity. The threshold for testamentary capacity is extremely low.   In general, an individual simply needs to know who they are, a basic understanding of what they have and the natural objects of their bounty.  Undue influence is the most common basis for challenging a will. Undue influence is defined as the mental, moral or physical exertion which destroys the free agency of an individual and prevents him or her from following the dictates of his or her own mind and will and accepting instead the domination and influence of another.  In other words, convincing a person to do something they would not have done otherwise without being coerced. 

Who can contest a will?

Not everyone has the right to contest a will.   Only Individuals with “standing” may challenge a will.   This includes individuals named in a prior will and next of kin who would be entitled to inherit from the estate if there was no will (i.e. intestate heirs).   Unlike the movies, there is no “reading of the will”. Interested parties are required to receive a notice of probate from the executor within 60 days of the will being admitted to probate.   The interested parties must also be provided a copy of the will or the right to request a copy of the will. This is often how individuals know how the estate will be distributed and whether there is a basis for challenging the will. 

How do I start a will contest? 

  1. Caveat – A caveat may be filed with the surrogate’s court prior to the probate of a will.   If a caveat is filed, the court cannot probate the will or appoint an executor. The estate is frozen until an application is made to the Superior Court and a Judge decides how the matter proceeds.  No reason or basis must be cited to file a caveat. 
  2. Complaint to Set Aside will – If the will has already been probated and an executor has been appointed by the surrogate’s court, the contestant must file a Complaint and Order to Show Cause with the Superior Court seeking to set aside the will based on one of the grounds referenced above – e.g. lack of testamentary capacity or undue influence.   

How long do I have to contest a will? 

There is a statute of limitations to file a contest if the will has been probated.  The limitation period runs from the date the individual receives the notice of probate from the executor. Those who reside in the same state the will is probated have 4 months to file an action to aside the will.   Individuals who reside out of state have 6 months to file an action. These limitation periods do not apply to actions related to the executor’s administration of the estate or accountings as to the use of the estate’s assets or proposed distributions.

Will contests are often contentious and lead to complex litigation heightened by emotional factors inherent to family disputes.   The experienced probate litigation attorneys at Mandelbaum Salsburg can help navigate you through the process and advocate for your interests when estate disputes arise.

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