• 5 Proven Strategies to Succeed in a Will Contest
  • July 9, 2013
  • Law Firm: The Micklin Law Group - Nutley Office
  • If you are a child or other close family member who is disinherited, you may have legal grounds to challenge a will under certain circumstances through the New Jersey probate process.  The most common legal grounds for contesting a will or challenging the administration of a trust, typically involves undue influence and lack of capacity.  Because the court will generally presume that a properly executed will, which has been witnessed and signed, is valid, contesting a will can be challenging.

    When you speak with a NJ estate planning lawyer at The Micklin Law Group, we can advise you regarding prospective strategies in challenging a will.  If you are an interested party, which includes anyone who stands to suffer harm or benefit if a will is administered according to its terms, you may contest a will once the will has been admitted for administration as part of the New Jersey probate process.  Although a spouse or former spouse is the most likely party involved in contesting a will, children from prior relationships, children from an intact marriage at the time of death, other relatives and even creditors may contest the terms of a will.

    An estate planning lawyer may recommend that a party set up a trust or use a “no contest clause” to reduce the risk of a will contest.  While an extensive discussion of trusts is beyond the scope of this blog post, the basic definition of a trust is a legal relationship where assets are placed under the management of a party for the beneficiary.  The person who creates the trust may be the trustee who manages the assets in the trust or the creator may appoint someone else to act in this capacity.  Because a trust does not need to go through the New Jersey probate process, its terms do not become a matter of public record.  The fact that the terms of the trust are not made public can prevent disputes over the disposition of the assets in the estate.  Similarly, a “no contest clause” can deter a family member from contesting a will because of the risk of forfeiting gifts if one is unsuccessful in challenging the terms of the will.

    Notwithstanding the strategies above that are often used to discourage a will contest, there are situations where wills are effectively contested.  We have included some effective strategies that can be employed in a will challenge below:

    • Lack of Capacity by the Will Creator: The party whose will is being administered must have had “testamentary capacity” at the time the will was drafted for a will to be valid.  The legal threshold for establishing sufficient mental capacity to execute a will is a fairly low standard.  However, we typically interview the witnesses that signed the will to determine if they observed evidence that undermines testamentary capacity.  Medical evidence can be the most compelling way to prove lack of capacity so we will investigate medical records and/or seek information from any medical professionals that examined the decedent a reasonably short time prior to execution of the will.
    • Lack of Formalities: There are strict rules for the proper form and execution of a will.  When these formalities are not observed, this may form the basis for contesting a will in NJ.  For example, a will that is not written in the creator’s own hand and not signed by two witnesses may be unenforceable.
    • Fraud: If the will was obtained by fraud, this may provide a basis for successfully contesting a will.  An individual may deceive a person into signing a will by lying about the nature of the document.  This grounds for contesting a will also requires testimony from the witnesses regarding their impressions about what the decedent thought he or she was signing.  It also typically will be appropriate to inquire as to why the witnesses were chosen.
    • Undue Influence: This grounds for challenging a will often arises when a party who is a caregiver uses his or her position to exploit the mental or physical susceptibility of the person having a will drafted.  The pressure imposed must arise to the level of duress rather than just suggestion or nagging.  The influence imposed must essentially be shown to compromise the decedent’s free will.
    • Relying on Experienced Probate Attorney: There are other legal grounds and strategies that may be used depending on the unique consequences of your case.  If you believe you have been prejudiced because of a party exploiting your loved one, we can advise you regarding your prospects of challenging a will.