In short, a will is a legal document that carefully describes your wishes pertaining to the distribution of your property and/or the care for your minor children once you pass away.
The creator of a will is called a Testator. If you are the child of the Testator, or other close family member, and are left out of the Testator’s will (disinherited), or do not receive the distribution you believe to be proper, you may be able to “contest” the will, and challenge its validity.
New Jersey’s probate process recognizes several grounds for contesting a will. Two common grounds are undue influence and lack of capacity. Five key points in challenging a will on these grounds are listed below.
Challenging A Will Because Of Undue Influence And Lack Of Capacity
FIRST, regardless of whether or not the will has a “no contest” clause, they are generally unenforceable in New Jersey, provided “probable cause” exists to challenge the will. In most cases, this is will not present an issue, but you should still contact an experienced estate litigation attorney to assess your potential claim before filing yourself.
SECOND, was the will procured by fraud, forgery, or undue influence? Typically, this takes place when the Testator was particularly vulnerable, and was essentially manipulated by someone else. The manipulator will do this for purposes of having the Testator leave all, or a significant amount, of the Testator’s property to the manipulator. The manipulator, under these circumstances, strips the Testator of his or her free will in creating the will.
THIRD, did the Testator “lack the capacity” that is required to make/sign the will? New Jersey law presumes that Testators are competent when signing a will. You may overcome this presumption if you can prove, by “clear and convincing evidence”, that the Testator did not have the requisite competence. You can do this by showing that, at the time the Testator signed the document, he or she did not understand the objects of his bounty, and knew the meanings to his signing. This is generally as a result of an illness, or other health condition that significantly impairs the Testator’s capacity.
FOURTH, did the Testator follow the proper formalities? New Jersey law requires the Testator to strictly adhere to the probate formalities in drafting his or her document. If the formalities are not adhered to, the document may be contested. For instance, if the document is not properly witnessed, it may be contested.
FIFTH, you should ensure that the statute of limitations has not run. Per New Jersey law, following the Testator’s death, you can immediately file a “caveat”, prior to the will being admitted to probate, which sets forth your objection to the will. Once the will is admitted to probate, you must file a complaint to contest the will. Critically, a petitioner generally only has four months following the probate of a will to challenge a will, or six months if the petitioner is out of state. As a result, time is of the essence when deciding whether to contest a will in New Jersey.
Hire An Estate Planning Attorney For Your Case
If you have a question, or need help, with probate, it is important that you seek the assistance of an experienced family law attorney with experience in estate litigation. Call us today at (732) 214-1103. Proudly Serving Central New Jersey, including Middlesex, Monmouth, Somerset, Union and Mercer Counties.