Contesting a Will in New Jersey
Courts tend to respect wills because they are seen as the final voice of the "testator" (the person who wrote the will), who is no longer able to speak to their wishes. Accordingly, the vast majority of wills in New Jersey go through probate without issue.
However, wills are sometimes written - or rewritten - under questionable circumstances, especially if the deceased was ill, isolated, or dependent on a caretaker. If you feel unfairly treated by a will written under suspicious circumstances, you may have grounds to challenge it. Overturning a will requires solid evidence, testimony, and a clear understanding of New Jersey probate law.
Who Has Standing to Contest?
The first requirement for contesting a will is that the challenger must have standing - a legally recognized interest in the terms of the will. Unfairness by itself is not enough; you cannot challenge a will simply because you disagree with it. Generally, two kinds of people have standing:
- Beneficiaries who are named in the current will.
- A person who would receive a benefit if the will were invalidated, such as a beneficiary named in a prior will whose interest was reduced, or an heir-at-law who would inherit under intestacy laws if no will existed.
The Six Legal Grounds for Contesting
Even with standing, you must have legal grounds to contest. The law allows a person of sound mind exercising free will to distribute their assets almost any way they wish. To overturn a will, you must prove one of the following:
1. Undue Influence or Coercion
Defined as "the substitution of the will of another which the testator is unable to resist or overcome," this is the most common reason for contesting a will. If you can establish a "presumption of undue influence" by proving a confidential relationship of trust and dependence, combined with suspicious circumstances (like excluding family members or concealing the new will), the burden of proof shifts to the defendant to prove they did not coerce the testator.
2. Lack of Capacity
If the testator had been declared incapacitated by a court and a guardian was appointed before the will was written, the document is invalid. Without a court declaration, you must provide medical records or testimony showing the testator could not understand what they were doing. This is difficult, as the legal threshold for mental capacity to write a will is very low - the testator only needs to comprehend the property they are disposing of and the natural objects of their bounty (their family).
3. Fraud or Forgery
If the signature on the will appears to be a forgery, or if evidence indicates that the testator was misled by a misrepresentation (e.g., they were told they were signing a different type of document), the will can be challenged.
4. Material Ambiguity
If the meaning of the will is unclear, a court may need to determine its meaning. In this instance, the validity of the will is not at issue, only the interpretation of the words. The court may look at prior wills or letters to determine the testator's "probable intent."
5. Failure to Observe Formalities
A will must generally be signed and witnessed according to strict state laws. If these formalities are ignored, the will can be challenged. However, New Jersey courts have the authority to accept a flawed document (like an unwitnessed handwritten note) if there is clear and convincing evidence it was intended to be the final will.
6. Denial of a Spouse's "Elective Share"
Under New Jersey law (N.J.S.A. 3B:8-1), a surviving spouse is entitled to inherit at least one-third of the "augmented estate" regardless of what the will says, unless they expressly waived that right in a prenuptial agreement or were in the process of divorcing.
The Process: Filing a Caveat
If you have standing and grounds, the first step to stop a will from being probated is to file a Caveat with the County Surrogate. Filing a caveat prevents the Surrogate from admitting the will to probate or taking any further action. Once a caveat is filed, the Surrogate must refer the matter to the Superior Court, Chancery Division, Probate Part, where formal litigation will begin.
If the will has already been admitted to probate, you must file a formal complaint in the Superior Court to challenge it, which is subject to strict time limits (usually four months for NJ residents, or six months for out-of-state residents).