(908)402-4770Wills 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.
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.
Undue Influence or Duress
Undue influence is one of the most common allegations made in contested will litigations. In order to prove that the testator was a victim of undue influence, the challenger will have to convince the probate judge that a person in a confidential relationship with the testator had power or undue influence over the testator. That person used that power to convince the testator to draft a will, or change an existing will, to benefit that person in a way the testator would not have otherwise done.
As stated above, a will admitted to probate is presumed valid. However, if the challenger is able to raise legitimate issues regarding undue influence on the testator, the burden of proof may shift to the proponent of the will to show that there was no undue influence exercised over the testator.
Wills are sometimes drafted in questionable circumstances-elderly, frail people who live in nursing homes with infrequent visitors or live at home with only a caretaker. The procedure for contesting a will is not complicated, but whether you want to prove that a testator was unduly influenced or defend against such a claim, you will need an experienced New Jersey trust and estate litigation attorney to make your case.
If you need an experienced New Jersey trust and estate litigation lawyer to contest a will or defend against claims of undue influence, call Schiller, Pittinger & Galvin, P. C., in our Scotch Plains office at 908-490-0444 on contact us online to set up a consultation.