Challenging a Will

N.J.S.A. 3B-3-1, et. seq. governs the requirements for a valid Will.  A Will must be specific––ambiguity creates space for challenges. Likewise, a Will must be executed properly, or else it again creates a situation where it can be challenged in probate court. Further, if there is more than one Will because prior Wills were not properly revoked, there again is a situation where a Will can be challenged after the death of the testator. 

Challenges to a Will take up a lot of resources, particularly time and money, and can also cause family turmoil and damage relationships.  Sometimes a challenge is not genuine while other times, the challenge to a Will's validity, meaning, or purpose, is viable and worthy. At Hartmann Law , our estate planning attorney team in New Jersey will help you understand if you can successfully challenge a Will, and if so, how to do it. If you are preparing your Life and Legacy Plan with us, we will make sure you understand how a Will can be properly drafted to include your express intent and avoid contests. Schedule a consultation to learn more. In the meantime, here's an overview of challenges to a Will in New Jersey.

What is a Will Contest?

When a person dies, their Will is offered for probate. The Will proponent––the person asserting the Will's validity––has the burden to prove the Will was duly executed. When a person challenges the validity of the Will, the burden shifts to the person challenging it, who is known as the contestant or caveator. The remedy for the challenge is what's known as a Will contest.

Who Can Challenge a Will in New Jersey ?

Not everyone can challenge a Will, and the precise groups of people who can depends on the state. Most states recognize the  “interested parties” as people who can challenge a Will in probate court because, given the circumstances, they have legal standing to contest the Will. 

In New Jersey, interested parties could include:

  • Beneficiaries of the will, or people who actually received property in it
  • Beneficiaries of a prior will, but who have received nothing in the current one
  • Anyone who would have inherited through intestacy law, but who received nothing in the will
  • Creditors with a claim against the estate

To note, beneficiaries do not have to be family members but could be friends or organizations. Interested parties must also have legal grounds to contest a will.  Simply contenting a perception of unfairness will be insufficient grounds for a Will contest.  For example, if the maker of a Will was of sound mind and exercised free will chose to disinherit a child, provide for children in unequal amounts or provide for a spouse of a second marriage instead of the Will maker's child(ren), the perceived unfairness, alone, is not grounds for contest.  

Grounds for Contesting a Will in New Jersey 

An interested party who wants to challenge a Will must have a valid legal reason to do so. The grounds for challenging a Will can include:

  • The Will does not comply with legal formalities
  • Materially ambiguous provisions exist in the Will
  • Forgery, grand or mistake is alleged
  • Denial of a spouses elective share in the Will
  • Undue influence or coercion altered the testator's decisions in the Will
  • The testator lacked the necessary mental capacity to write a Will

When an interested party contests a Will, that party has the burden to prove the allegations.

How to Challenge a New Jersey 

An attorney can help you challenge a will by filing a motion called a caveat with the Surrogate prior to the filing of the will or filing a proceeding with the Superior Court once the Will has been admitted to probate. These challenges have to be made quickly and be filed within the proscribed time required by the statute of limitations, and  once it expires the Will cannot be challenged. 

However, many wills are written with no-contest clauses, also known as no-contest “in terrorem”. While these do not completely prevent challenges from being made, they may strip a beneficiary of what they received in the will if they mount a challenge and then lose their claim in court. Will makers seek to use make frequent these clauses to prevent conflict amongst beneficiaries and when they want to deter challenges.

Contact Hartmann Law Today

If you want to create a Life and Legacy plan that will clearly direct your intentions and deter challenges, contact Hartmann Law today.  If you believe a Will that has been offered to probate is invalid for any of the above reasons, the Will may be challenged. A successful challenge depends on how well you put together your arguments and evidentiary support. We will thoroughly review your situation, the Will, and other documentation, advise you on your options, and, if it's in your best interests, help put together a strong case. Contact Hartmann Law today.