Grounds to Contest a Will

When someone contests a Last Will and Testament, they are objecting to its validity. In order to contest a Will in New Jersey, an individual must have “standing,” or locus standi. To have standing, or locus standi, the individual must be considered a person with an interest in the estate, such as legal heir. Anyone named in a prior Last Will and Testament may also have standing to contest a Will, if the Will entered into probate removes or reduces the share that person or group would have received in a prior Will.

Individuals may contest a Last Will and Testament for a variety of reasons, including improper execution, lack of testamentary capacity, undue influence, or fraud. Here are the four grounds that are used to contest a Will:

A Will must be signed in accordance with New Jersey Law.

• A Will must be properly executed under New Jersey Law. If a Last Will and Testament does not meet the standards of execution, then it is deemed to be invalid and, therefore, cannot transfer property or assets to the heirs of the deceased. The signature section of a Will is very important, which is why an experienced estate planning attorney should oversee the execution the Will. Additionally, it is imperative that the proper number of witnesses are present at the Will’s signing.

An individual must have testamentary capacity.

• If the individual did not have testamentary capacity at the time his or her Will was executed, it is invalid. Most states recognize that, in order to be considered competent to execute a Last Will and Testament, an individual must know (1) the nature and value of their assets, (2) the recipient of their assets if they did not have a Will, and (3) the legal effect of signing the Will.

A person must not be unduly influenced.

• Undue influence is one of the most common grounds for the contest of a Last Will and Testament. In order to prove that undue influence occurred during the execution or modification to the Will, a person must show that the Will left assets in a way that was not expected, a “confidential relationship” existed between the testator (creator of the Will) and the individual who exerted influence, the testator was susceptible to undue influence, and the influencer took advantage of the Will and benefited from it. Essentially, the testator may have been under duress and lost their independence to think for themselves. Oftentimes, it is hard to prove undue influence as it must be proven based on factual evidence. However, when unequal distributions are made or distributions to non-family members, courts have considered that a Will was created out of duress and, in this case, they may closely examine the execution of the Will if it is contested by a third-party.

A Will must not be fraudulent.

• Fraud can occur when a person adds pages into a Will unbeknown to the signer, or a testator believes they are signing one type of document when in fact it is a Last Will and Testament. In this instance, the Will is invalid because it is not an expression of the testator’s true intent. It is important that individuals review and consent to all parts of the document and sign each page.

When executing a Last Will and Testament, it is important that individuals consult an experienced estate planning lawyer who can oversee the process and help ensure that it is drafted in accordance with New Jersey State law and reflects the wishes of the testator. The lawyers at Hunziker, Jones, & Sweeney P.A. have experience representing clients in various estate planning matters, including the drafting, execution, probate, and contest of Last Will and Testaments. Our estate planning lawyers recognize that these issues can range from simple to complex, and come at an emotional time for family members and loved ones. The attorneys at the firm are trusted by their clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, contact our New Jersey estate planning law firm at (973) 256-0456.