• How to Avoid Will Contests in New Jersey Probate
  • February 7, 2013
  • Law Firm: Brad M. Micklin Esq. Counsellor at Law L.L.C. - Nutley Office
  • Will contests are popular subjects today.  Part of the reason, I beleive, is the economic climate of the country but also because New Jersey Probate Law allows for the payment of legal fees from the estate if there was a good faith basis for the challenge, not whether or not it was successful.

    Any interested party may contest a will either before or after Probate (4 months). Persons with standing to challenge a will include those who are named on the face of the will and those who would inherit from the testator if the will was to be declared invalid. The burden of then showing why probate of the instrument should not be granted is upon the caveator, person contesting the Will, or the person who obtained the OTSC to set aside the judgment admitting the will to probate. The person contesting normally has the burden of proof, however, in some cases a presumption arises, then it falls to the other party. Typically the most cited grounds are (1) the will was not executed in accordance with the formality required by the Statue of Wills, (2) the testator lacked sufficient capacity to execute a will, (3) the will was a product of undue influence and (4) the will was a produce of deception or fraud.

    Undue Influence 

    In any attack upon the validity of a will, it is generally presumed that "the testator was of sound mind and competent when he executed the will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). "The burden of proving undue influence is upon the person asserting it and it must be clearly established." Gellert v. Livingston, supra, 5 N.J. at 71; In re Will of Liebl, 260 N.J. Super. 519, 527 (App. Div. 1992). If a will is tainted by "undue influence," it may be overturned. "Undue influence" has been defined as "mental, moral or physical" exertion which has destroyed the "free agency of a testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Gellert, supra, 5 N.J. at 71; In re Blake’s Will, 21 N.J. 50, 55-56 (1956); In re Dodge, 50 N.J. 192 (1967); Haynes v. First National State Bank, 87 N.J. 176 (1981); Pascale v. Pascale, 113 N.J. 20 (1988). When such a contention is made the burden of proving undue influence lies upon the contestant unless the will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. Id. In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent. Id.

    Two elements are necessary to create a presumption of undue influence. The first element necessary to raise a presumption of undue influence, a "confidential relationship" between the testator and a beneficiary, arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists. Haynes, supra, 87 N.J. at 176. The second element necessary to create the presumption of undue influence is the presence of suspicious circumstances which, in combination with such a confidential relationship, will shift the burden of proof to the proponent. Such circumstances need be no more than "slight." Id. Once a presumption of undue influence has been established the burden of proof shifts to the proponent of the will, who must, under normal circumstances, overcome that presumption by a preponderance of the evidence. Id. at 177. However, where attorney misconduct appears, the burden of proof is clear and convincing evidence. Id. at 178-79, 182.

                In Haynes, the Court found the presumption of undue influence created by a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary as well as the attorney, must be rebutted by clear and convincing evidence. Id. The Court agreed with the trial court that the aged Mrs. Dutrow, afflicted by the debilitations of advanced years, was dependent upon her sole surviving child with whom she lived and upon whom she relied for companionship, care and support. Id. at 176. This was a relationship sustained by confidence and trust. Id. There was a confidential relationship between the testatrix and the chief beneficiary of her will is unassailable. The Court also agreed the second element was present, stating there were suspicious circumstances attendant upon the execution of the will. Id. at 177. There was a confidential relationship between the testatrix and her attorney, who was also the attorney for the daughter and the daughter's immediate family. Id. Furthermore, following the establishment of the confidential relationship of the daughter's attorney with the testatrix, there was a drastic change in the testamentary dispositions of the testatrix, which favored the daughter. Id. These factors collectively triggered the presumption that there was undue influence in the execution of the will. The Court remanded the action to the trial court to see if the party could rebut the presumption because the trial court used preponderance of the evidence instead of clear and convincing evidence.

                The same occurred in In re Blake’s Will, 21 N.J. at 58-59, where the attorney who drew the will was the sole beneficiary and the Court required "substantial and trustworthy evidence of explanatory facts" and "candid and full disclosure" to dispel the presumption of undue influence.

                In In re Probate of Last Will, 361 N.J. Super. 478 (App. Div. 2003), Thomas was named executor of his Aunts Estate. The Aunt had a stroke and limited ability to speak and see and was paralyzed. Thomas had a power of attorney which he used to gift himself and his wife $10,000 and later created a trust which he used to his benefit. The Court found the combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The judge pointed to the fact that Thomas retained his own attorney to prepare the trust, where he knew his Aunt had an attorney, he prepared the documents without consultation to the testator, the documents were markedly different than what was provided for in the testator’s will, the testator of debilitated and vulnerable, the effect of the documents immediately vested control of all assets of testator through and intervivos gift, and he dispensed substantial gifts through himself and his family. Thomas was unable to prove by a preponderance of the evidence that he did not assert undue influence on the testator.

    Lack Of Capacity 

                There is a legal presumption that "the testator was of sound mind and competent when he executed the will." Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981) (quoting Gellert v. Livingston, supra, 5 N.J. at 71); In re Hoover, supra, 21 N.J.Super. at 325. The gauge of testamentary capacity is "whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will." Gellert v. Livingston, supra, 5 N.J. at 73. Testamentary capacity is to be tested at the date of the execution of the will. Id. at 76. Furthermore, "as a general principle, the law requires only a very low degree of mental capacity for one executing a will." In re Rasnick, 77 N.J. Super. 380, 394 (Cty. Ct. 1962); see Loveridge v. Brown, 98 N.J.Eq. 381, 387 (E. & A.1925). "The burden of establishing a lack of testamentary capacity is upon the one who challenges its existence and that burden must be sustained by clear and convincing evidence." In re Hoover, supra, 21 N.J. Super. at 325; accord In re Rasnick, supra, 77 N.J. Super. at 395. A testator's misconception of the exact nature or value of his assets will not invalidate a will where there is no evidence of incapacity. See In re Livingston's Will, 37 A. 770, 772 (Prerog. 1897); McCoon v. Allen, 45 N.J.Eq. 708, 719 (Prerog. Ct. 1889); Collins v. Osborn, 34 N.J.Eq. 511, 520 (Prerog. Ct. 1881). "Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity." 79 Am.Jur.2d Wills s. 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. "It is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property." In re Livingston's Will, supra.

                In Landsman, 319 N.J. at 267, the court found that there was no question the Testator had testamentary capacity. The evidence showed that in 1988, Landsman, then eighty-six years old, lived alone in an apartment. Id. Twice a day he walked to and participated in religious services. Id. Only when it was dark did his friend Klein walk him home. Id. According to Klein, his mental condition was "fine." Id. Golda Kruger helped Landsman do his grocery shopping and drove him to doctor's appointments but found him to be "sharp." Id. He was not then forgetful or confused. Every Sunday, he took several buses to North Bergen from Jersey City to visit Florence. Id. at 267-68. According to Rabbi Wasserman, Landsman always had his "wits about him." Id. at 268.