% reasons new jersey probate to challenge a will

5 Reasons You can Challenge a Will in New Jersey

Can I Challenge a Will in New Jersey?

There are several legal reasons for a Will contest in New Jersey, but it can be extremely difficult to prove any one of them:

  1. Will Not Properly Executed;
  2. Will Was Signed Under Duress;
  3. Will Was Procured by Fraud;
  4. Testator Was Unduly Influenced;
  5. Testator Lacked Testamentary Capacity to Sign a Will.

For the purpose of this article I will concentrate on the last two.

Undue influence has its challenges when challenging a will under this legal principle because people tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this:

  • Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer?

New Jersey Surrogate Courts define undue influence in the context as “mental, moral or physical” exertion by a person in a confidential relationship with the testator. However, the actions must be so strong that they destroy the testator’s free will to leave her/his property in the proportions and to whom she/he would otherwise have done.

Mere nagging, threats, and verbal abuse are not enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends.

The person who is contesting the will has the burden of proving undue influence, but if the contestant can show that the will is written to benefit someone in a confidential relationship and that there are suspicious circumstances, a presumption of undue influence is created, shifting the burden to the proponent (defender) of the will to overcome that presumption.

Undue influence is exceedingly difficult to prove in court.

When it comes to the testator’s testamentary capacity, the law assumes that adult individuals have mental capacity, that is, they can make rational decisions on their own behalf. However, the law does not expect or require that they make rational decisions. Competent individuals of all ages, old and young, have the right to make foolish, eccentric, or idiosyncratic decisions. For better or worse, all of us are free to make bad decisions.

In addition, a person’s capacity may change from day to day, depending on the course of the illness, fatigue, and the effects of medication. People with chronic illness have good days and bad days. Some may experience changes in capacity even during the day and be more alert in the morning, or maybe have their best time in the afternoon. Legal competency is not something that a person either has or does not have – it can be quite variable.

Legal competence is different from medical competence. While medical testimony is important and is always sought by a court in making the determination of capacity, deciding the competence of a person a legal determination, not a medical one. Since the law has many different defined standards depending on the action being taken, the determination of whether a person is competent to do a certain thing is always a legal decision.

The purpose for which the capacity is being determined is also important and the standard varies depending on the purpose. For instance, a higher standard is applied for having a guardian appointed then for making a will or giving informed consent to medical treatment.

          What surprises most people is that the capacity to make a will, called testamentary capacity, is the lowest level of capacity in the law. All that is required is that the person making the will must,

  1. understand in a general way, the nature of his property
  2. know who are the “natural objects of his bounty,” that is, the persons who would normally be his heirs
  3. comprehend that he or she is making a will

    For instance, a person who has had a stroke, or is diagnosed with Alzheimer’s disease, may still have sufficient capacity to make a will even though there is some impairment of speech, some impairment of thought processes, and/or some physical impairment.

    The fact that a client does not know the year or the name of the President, does not necessarily mean that she cannot make a will. Since signing a will does not require a great deal of capacity, the fact that the next day the person does not remember the signing a will does not make the will invalid if she had minimum required capacity the day before when he signed it.

    For legal purposes, a person can show signs of dementia yet still be considered to have the testamentary capacity to sign a will if she understands the necessary details, even if her memory and mind are slipping in other areas. The testimony of the witnesses to the will signing becomes crucial in cases such as this.

    Absent a doctor’s visit or an adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.

    It is very important that anyone considering a will contest or defending against one consult legal counsel as early as possible. The stakes involved in matters of inheritance can be financially and personally significant. Do not delay as deadlines in this area tend to be relatively short.

    The lawyers at Patel, Soltis & Cardenas with offices in Jersey City and Freehold, New Jersey, represent people on both sides of will contests across the state or from other states when a New Jersey will contest or other estate litigation is involved. If you feel that the Executor of the will is taking advantage of you or they took advantage of the person who passed, it does not hurt to speak with an attorney.

We can help you immediately.

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