Wills that are admitted to probate in New Jersey are presumed to be valid. However, sometimes a person who was left out of a will, who did not receive the bequest he expected or was in a prior will but left out of the probated will wishes to challenge the will being probated. New Jersey will contests can be made based on lack of capacity.
Who Can Contest a Will in New Jersey?
In order to contest a will in New Jersey, the person challenging the will must have standing. That means that the challenger must already be a named beneficiary in the will.
People who would have received a bequest if the deceased had died without a will (“heirs at law”) also have standing to contest the will being probated.
Lastly, a person who was a beneficiary in a prior will, but who is not named in the will being probated, or who received a smaller bequest in the probated will, has standing to contest the will.
How Do You Contest a Will in New Jersey?
There are two ways of contesting wills in New Jersey. The first is by filing a “Caveat” in the county Surrogate’s office where the will is to be probated (which is the county in which the deceased lived when she died). That will stop the Surrogate from appointing the executor to begin the probate process. It is the first step in contesting a will.
If the will has already been admitted to probate, the challenger can file an order to show cause in the Superior Court, Chancery Division, Probate Part in the county where the deceased lived at the time of death. All litigation involving wills is handled in the Chancery Division.
New Jersey residents can challenge wills up to four months after the executor’s date of appointment. Out of state residents have six months to file a challenge.
Lack of Capacity
A testator lacks capacity (or “lacks testamentary capacity” or suffers from “mental incapacity”) when she cannot understand what she is signing and does not understand the impact of signing a will. Furthermore, the testator does not realize how much or what type of property she has and who are her family and/or beneficiaries.
However, in New Jersey, a testator needs only a low level of mental capacity to be competent to sign a will. For instance, ignorance of the extent or type of her possessions alone does not show mental incapacity; it is the inability to comprehend that she has any estate that can indicate the testator suffered from mental incapacity.
In order to assert a claim of lack of testamentary capacity or defend against one, knowledgeable New Jersey will contest lawyers will need to interview family and friends and collect correspondence and emails/texts. Medical records will have to be gathered and examined. Additionally, the deceased’s medical doctors may have to testify.
New Jersey Will Contests: Lack of Capacity
If you need an experienced New Jersey will contests lawyers to contest a will or defend against a claim of lack of testamentary capacity, call Schiller, Pittinger & Galvin, P. C., in our Scotch Plains office at 908-490-0444 on contact us online to set up a consultation.