If you feel like something is off about a will, talk to a probate lawyer about the will. There are basic things every will requires to be valid.
The death of a loved one is an event that most of us will experience at some time during our lives. Whether it is a parent, grandparent, or sibling the pain of loss and grieving that takes place can be overwhelming. When people pass, other people or even family members can appear to lose all common sense when it comes to the probate process. People start demanding things they are not entitled to, or a fake will emerges or even outright theft from the estate.If a will is found, the first question normally is: ” Is this the most current will and is it a valid will?” Does the will sound like the wishes are consistent with the decedent’s beliefs as to what they wanted and what they may have intended or even said they intended before they dies? If so, then the decedent’s estate will likely be distributed according to the terms of the will, however, if things do not seem right then you may want to talk to an attorney about the will.
We will have an attorney reach out to you.
1. The person who signed the mental will was not competent or in his or her right mind. This is called Testamentary capacity. The Bouvier Law Dictionary defines Testamentary Capacity as: “Sufficient awareness and understanding to make a will. Testamentary capacity is a measure of an adult’s mental competence to perform a binding testamentary act, especially to execute a Last Will and Testament. Capacity is presumed in all adults, and the burden is upon a person who would demonstrate an act is made without capacity to prove lack of capacity as a matter of fact. Capacity requires that a testator understand the legal effects of the act to be committed, the extent of the testator’s property, the identities of people who would be the natural objects of the testator’s affections (family members whether or not they are devised a thing in the will), the significance of the dispositions that are the will, and be able to express by signature or mark the intent that these dispositions occur. These five elements are variously organized in judicial and statutory tests for competence. Proof of incompetence depends on proof of an absence of understanding for one or more of these elements at the time of the testamentary act. While often pled as if it were part and parcel with testamentary capacity, whether a will was the product of undue influence is a distinct question, although the plea is more likely to succeed if there is proof of a weakened mind that is more amenable to influence.”
NJ Rev Stat § 3B:3-1 (2019) Individuals competent to make a will and appoint a testamentary guardians fairly straightforward: “Any individual 18 or more years of age who is of sound mind may make a will and may appoint a testamentary guardian.”
2. Undue influence by a person having the testator sign the will. Think the housekeeper for the last 2 months of someone’s life is left everything and the will is done shortly before the person passes. Undue influence in New Jersey is defined in the case In re Estate of Folcher, 224 N.J. 496, 512, (2016) as “a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer.” In this case a new wife “used undue influence to isolate her infirm and dying husband from the children of his first marriage.”
What constitutes a confidential relationship can have a legal nature like an attorney; or a family member like a son, daughter, or new wife; or even a caretaker at a nursing home. In re Estate of Stockdale, 196 N.J. 275, 302-03, 953 A.2d 454, 470 (2008)
To set aside a will based on that the will was a product of undue influence; the person, business, trust, charity or even an LLC normally files a caveat. Anyone that would take if someone that would have dies without a will or took under a previous will can contest a will A caveat is a formal mechanism by which one gives notice of a challenge to a will that has been or is expected to be offered for probate. See In re Myers’ Will, 20 N.J. 228, 235, 119 A.2d 129 (1955) (explaining that standing to lodge caveat requires status as one injured by probate of the will being contested). The act of filing the caveat prevents the Surrogate from issuing letters testamentary that would authorize a particular individual or entity to begin the administration of the estate. Instead the NJ Probate Court causes the matter to be pursued by way of an Order to Show Cause (OSC) and formal complaint, in the Probate Part. See R. 4:83-1.
If a will has already been admitted to probate, it still can be challenged by filing a complaint in the NJ Probate Part. See R. 4:85-1. Regardless of whether the matter begins with a caveat or with a complaint after a will has already been admitted to probate a variety of ways the NJ Chancery Court can help. If you are concerned about undue influence you should speak with a NJ Probate Litigation attorney as soon as possible. Probate can move fast, and if the complaint is not filed timely the Probate court could rule that you sat on your rights.
3. Not all of the laws were followed when the will was signed. One of the witnesses takes under the will, the will leaves items to a divorced spouse and the will was not updated, or the will is not signed.
Handwritten wills (Holographic Wills) can be submitted to probate in New Jersey if the handwriting can be verified as the testators. In the case of a handwritten will, the will does not need witnesses. However, this is not recommended.
New Jersey does not require testators to notarize their wills to make them legal. But, there is one major advantage of getting a will notarized in new Jersey. When a New Jersey notary signs and stamps the testator’s will, the will becomes “self-proving.” A “self-proving” allows the Surrogate to find that the will is authentic without having to have the witnesses testify to prove the authenticity of the will. The probate process becomes much faster with a notarized will than one that is not “self-proving.”
4. There is a more recent version of the will. Someone may have a will from 10 years ago, but there is a more recent will.
Pretend it is 2022, and the attorney for your father submits a will from 1970 to be probated and you weren’t even born yet. However, you have a will from 2021 that your father kept with his personal belonging prepared by a different NJ Probate attorney. Your will is going to be considered the correct will to be probated.
The previous Estate Planning attorney could have submitted the will because he did not know any better, so in this case, the will contest may not be adversarial. Normally an attorney would make a policy call to just withdraw the will that he attempted to probate.
As a disclaimer, not all will contests are adversarial, but most will contests tend to have a clear winner and loser in most cases, or in a worst-case scenario the only people that benefit are the attorneys’ law firms from when will is contested.
You can read blog after blog about cases where a document or another can include information that hurts executors, or the content indicated that the practice for creating the will was incorrect. The reasons to contest wills are real. Real Estate can be given away from the estate to people who should not be inheriting if a will is produced by fraud or if a law firm fails to draft a will correctly.
If estate planning was done correctly, taxes should be able to be avoided, the decedents wishes should be followed, and the will will have been executed correctly to do all of this. There should be no party challenging the will.
It is difficult managing insurance payouts, filing taxes, searching for a debtor’s assets, dealing with all of the issues involved with probate while trying to maintain your sanity and health.
If you need help or advice, feel free to reach out to my team to assist in anyway we can.
5. The will is physically or legally incomplete. If pages are missing, or the will is missing signatures. Or, if a handwritten will has large sections done in someone else’s handwriting for the material sections of the will.
These are not the only reasons a will can be contested, but they are a high-level view of reasons that are fairly common to contest a will in New Jersey.
Anyone that is listed as a beneficiary under the decedent’s will may contest the will’s validity. Other catagories of people that may not be in the will also can incase a will such as a spouse, children, or next of kin of the decedent if a spouse or children do not exist. This would be anyone that would take under the laws of intestacy. Intestacy is a fancy term of saying someone died with out a will. Other people that can contest a will are any beneficiaries that would have taken under a previous will. So in the case where someone has a previous will and are cut out of a new will would have a cause of action to contest the newer will.
To start a will contest, a verified complaint signed by the person contesting the will needs to be filed in the county courthouse where the will is being probated. This should be the county that the decedent lived before they passed, along with an order to show cause to get the complaint in front of the Probate Judge as an emergent matter.
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