Articles

Will Contest in New Jersey

By: Attorney Neal S. Solomon

A will contest is a legal action challenging the validity of a purported will. Whether you are an executor who is defending a will, or a person who wishes to contest a will, you will need an attorney to represent you in this specialized type of matter.

New Jersey courts apply different standards in will contests to determine whether a will is valid, or whether it was the subject of “undue influence”, depending on the circumstances presented in the case. Although generally speaking a will is presumed to be valid, in certain situations a presumption of undue influence may arise. These rules can be complex and sometimes confusing, even for attorneys. A will contest is thus not only a challenge for the client, but it can be a challenge for the attorneys as well, and therefore it is important when you are looking for an attorney to look for someone with experience in this specialized area.

Will contests involving public figures often attract the public’s interest, such as the case involving the estate of J. Seward Johnson, Sr., heir to part of the Johnson & Johnson fortune, or the case involving Anna Nicole Smith and the elderly Texas millionaire that she married. Will contests often occur when children of the testator are treated unequally under the will, for example, if the testator has several children but the will names one child as the executor and sole beneficiary of the will. Will contests also may occur when a testator makes bequests to non-family members instead of blood relatives, or to the spouse from a second marriage at the expense of children from a prior marriage.

For a will to take effect it must be admitted into probate. The executor who is named in the purported will initiates the probate process by presenting the original will together with the original death certificate to the Surrogate.  Often the executor will hire an attorney to assist with this process. If the estate is at all complicated, it is advisable to hire an attorney who specializes in estate matters to assist with administration of the estate once the will has been admitted into probate, even if the executor handles the initial probate process on his or her own.

It is advisable to retain an attorney who specializes in estate and trust litigation if you wish to contest a will, or if you are named as executor in a will and suspect that someone may file a challenge to the will. A will contest can be initiated by filing a document known as a “caveat” with the Surrogate before a purported will has been admitted into probate. The probate of a will cannot occur until the eleventh day after the date of death of the testator. This ten-day period allows for the filing of a caveat with the Surrogate of the County in which the decedent was domiciled at the time of his or her death. A caveat can be filed at any time prior to the admission of a will into probate. Any one with standing to challenge the will can file a caveat.

Persons with standing to challenge a will include those who are named on the face of the will and those who would inherit from the testator if the will was to be declared invalid. If a caveat has been filed with the Surrogate in a timely manner, then the proponent of the contested will cannot probate the will simply by presenting it to the Surrogate with the decedent’s death certificate. Instead, the proponent must proceed by commencing a lawsuit seeking to probate the purported will.

Even if it is too late to file a caveat, it is not necessarily too late to hire an attorney to file a will contest. A will contest also can be commenced after a will has been admitted into probate. In that case, the estate attorney for the will contestant must file a lawsuit seeking to set aside the probate of the purported will. New Jersey has strict time limits for commencing such an action. Under New Jersey Court Rule 4:85-1, a New Jersey resident has four months from the date of probate to challenge a will. Someone who resides outside of New Jersey must file the appropriate legal papers within six months of the date of probate. Any one who is thinking of challenging a will in New Jersey should hire an attorney with enough time for the attorney to file the required legal papers within the prescribed time period.

If you are an executor facing a will contest, or even the possibility of a will contest, you should seek the advice of a trust & estate lawyer. Common grounds for the challenge of a will in New Jersey include that the testator lacked testamentary capacity and/or was subject to the undue influence of another beneficiary of the will.

Generally, any one who is of sound mind can make a will, and a low degree of capacity will suffice. Undue influence occurs when someone exerts pressure on the testator or so dominates the testator that the testator’s “free agency” is destroyed. Basically, it is as if the testator would have said, “This is not what I want to do, but I must do it anyway.” For example, a case in which the testatrix was taken from her home and held against her will until she signed documents that were given to her for signature by her captors presents an obvious situation involving undue influence. Most situations, however, are not so clear. They involve more complex factual situations, and your attorney will need to investigate the underlying circumstances thoroughly.

Undue influence is not always readily apparent. Invariably the persons who are upset by the contents of a will were not present when the will was made. In New Jersey, however, a presumption of undue influence will arise if there was a “confidential relationship” between the testator and the beneficiary of the will, combined with “suspicious circumstances” surrounding the execution of the will. A “confidential relationship” is one of trust and dependence, where one party places trust in another, whether by reason of weakness or because they are in a relationship where such trust and “reliance is naturally inspired or in fact exists.” Haynes v. First National State Bank of New Jersey, 87 N.J. 163 (1987). “Suspicious circumstances” include the testator’s mental weakness, a drastic change in the testator’s testamentary plan, the involvement of the favored beneficiary in the preparation and/or execution of the will, or if the testator’s will is prepared by the attorney who is also attorney for the beneficiary.

A similar analysis has been applied to multi-party bank accounts, such as joint accounts and payable on death accounts. Payable on death accounts are similar to wills, in that the beneficiary does not receive the account until the death of the account holder. New Jersey has a statute, N.J.S.A. 17:16I-5, that states that “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.” Nevertheless, our courts have set forth an alternative basis to challenge the ownership of a joint ownership account on the death of one party. If the challenger can prove that the survivor had a confidential relationship with the donor, then there is a presumption of undue influence that the survivor donee must rebut. Ostlund v Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007).

In many cases assets are outside of the decedent’s probate estate by virtue of their being in joint accounts or payable on death accounts, and a will contest will not affect these assets. In such situations, a person who is considering a challenge to the decedent’s will should retain an attorney to analyze also whether it is worth pursuing a challenge to joint or payable on death accounts established by the decedent, or other gifts that may have been made by the decedent during his or her lifetime.

 

About the Author
Neal Solomon is an estate litigation attorney in the Princeton based law firm of Pellettieri, Rabstein & Altman. He specializes in wills, trusts, estate litigation and can be reached at 609 520-0900 or http://www.pralaw.com
 

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