The most common issue I deal with is heirs fighting over assets. This happens whether people have wills or not. It’s incredible how siblings are always disputing something within an estate. Sometimes, when there is no will, they fight about who should be the administrator because they think that by becoming the administrator they have all the power. The administrator does get a percentage of the estate, as set by statute in New Jersey, but he or she is also supposed to distribute the assets equally. The other issue I see is older siblings thinking they have more rights. That’s not how it works.
Who Can Challenge A Will?
In order for you to have a standing to challenge the will, you would have to benefit under that will or be someone who loses under the will. It could be that a new will was created three days before the person died and you were cut out of it. Typically, there was undue influence. The only people who can challenge a will are those who benefit or lose under it.
What Are Grounds To Bring A Will Contest?
In order to bring a will contest, you must first have standing, meaning that you benefit or lose under the will. The first reason to challenge is failure to sign the will. In accordance with the state law in New Jersey, you need two witnesses and a notary public or an attorney to validate a will. You can challenge a will on the basis that it wasn’t properly executed; there are not enough witnesses or there wasn’t a notary public or attorney. You can challenge the will under the testator’s capacity by saying that the testator didn’t have the capacity to understand what he was signing. Then, there is undue influence, where someone is taking care of the testator, so the testator depends heavily on that person, and suddenly that person benefits the most under the will. There could be fraud, as well. The testator could be told by someone that they are signing a hospital bill or some other document when they are actually signing a new will.
Grounds for challenging wills are not simple to prove in court. Will typically have two witnesses and an attorney present when the person signs, so they are difficult to dispute. If there is an attorney who notarized the will in the presence of witnesses, it will be hard to prove in court that there was undue influence or fraud.
When Should A Will Be Challenged?
A will can be challenged at any point, even after probate has been closed. You would have to prove a meritorious cause for that challenge, however, which is where it gets difficult. There are some statutes of limitations. After probate is closed, a challenge must be filed within two years of the date that it was filed into probate.
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