 Will Contests: How Do They Work? |
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 Nancy RiceEsquire, CELA |
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In New Jersey, the probate of a Will and the appointment of an Executor is most commonly not a formal procedure.
If a Will is properly executed and has two Witnesses and a Notary, the Will can be admitted to probate by the Surrogate’s Office of the County in which the deceased resided. No court proceeding is required, and the Surrogates Offices are set up to make the Probate process simple and cost-efficient.
If a beneficiary of an estate has reason to think that the Will to be submitted to probate is not valid, it is critical that he or she contact a lawyer immediately following the death, as New Jersey law provides that the Will cannot be admitted to probate by the Surrogate until the eleventh (11th) day following date of death. During that 10 day period, anyone seeking to challenge the Will may file a Caveat, a simple statement of objection, which prevents the Surrogate from probating a Will for that Estate. If a Will is presented, the Surrogate advises the named Executor under the Will that he or she must file a Complaint and Order to Show Cause in the Superior Court, Chancery Division, Probate Part to have the Will admitted to probate by the Court.
If no Caveat is filed, and the Will is in proper form, the Surrogate may admit the Will to probate and issue Executor “Short Certificates” to the person appointed as Executor in the Will.
Because an Executor of the estate has tremendous power, it is critical to prevent the appointment of the Executor from the outset if there is a basis to challenge the Will, as most judges are hesitant to “remove” an Executor after he or she is appointed unless there is clear evidence that he or she has acted improperly.
If the Will has already been admitted to probate, you must still act promptly if you want to challenge a Will because in New Jersey a resident who has received Notice of Probate of the Will has only four (4) months to contest the filing of the Will; non-residents have only six (6) months.
The reasons to challenge the validity of a Will, include:
A The Will was subject of a fraud;
B The Will was not properly executed;
C The person who signed the Will (Testator) did not have “testamentary capacity” to understand or sign the Will;
D The Testator was coerced or unduly influenced to sign the Will.
A. Fraud
It is fairly unusual but possible that a Will was signed as a result of someone’s fraudulent conduct.
For example, if a Testator is beguiled into signing a document without knowing what it is, what it says, or even that it is a Will. Other situations include where a beneficiary induces a Testator to execute a Will based on false facts (i.e. a suitor promises to marry the Testator if he is made a beneficiary under the Testator’s Will, where the suitor has no intention of marrying the Testator). In the context of a Will contest, fraud will not be presumed. Moreover, if the Testator learns of the fraudulent conduct and does nothing to change the Will over an extended period of time, it may be argued that the Testator affirmed the contents of the Will and, as a result, it may be upheld.
B. Due Execution.
In New Jersey, a type-written Will must be witnessed by two (2) persons, over the age of eighteen (18) years, both of whom witnessed the Will signing. It is helpful (but not necessary) for the Will to have a “self-proving affidavit” attached, which is signed by the Testator, the Witnesses, and a Notary.
If a Will is entirely in the handwriting of the Testator (called a “holographic” Will), New Jersey requires no Witnesses but it cannot be admitted to probate to the Surrogate; it must be admitted by the Court, upon filing of a Complaint and Order to Show Cause.
"In the next issue, we will discuss the other two grounds to challenge a Will listed above: Lack of Testamentary Capacity and Undue Influence. In the meantime, if you believe that a Will should be challenged because it is defective, for one reason or another, you should hire a seasoned attorney, who has significant experiences in this area of law. Do not delay with your decision to engage an experienced attorney because the law allows only a narrow window of time during which a caveat and/ or a Will contest may be filed.
If a Will is properly executed and has two Witnesses and a Notary, the Will can be admitted to probate by the Surrogate’s Office of the County in which the deceased resided. No court proceeding is required, and the Surrogates Offices are set up to make the Probate process simple and cost-efficient.
If a beneficiary of an estate has reason to think that the Will to be submitted to probate is not valid, it is critical that he or she contact a lawyer immediately following the death, as New Jersey law provides that the Will cannot be admitted to probate by the Surrogate until the eleventh (11th) day following date of death. During that 10 day period, anyone seeking to challenge the Will may file a Caveat, a simple statement of objection, which prevents the Surrogate from probating a Will for that Estate. If a Will is presented, the Surrogate advises the named Executor under the Will that he or she must file a Complaint and Order to Show Cause in the Superior Court, Chancery Division, Probate Part to have the Will admitted to probate by the Court.
If no Caveat is filed, and the Will is in proper form, the Surrogate may admit the Will to probate and issue Executor “Short Certificates” to the person appointed as Executor in the Will.
Because an Executor of the estate has tremendous power, it is critical to prevent the appointment of the Executor from the outset if there is a basis to challenge the Will, as most judges are hesitant to “remove” an Executor after he or she is appointed unless there is clear evidence that he or she has acted improperly.
If the Will has already been admitted to probate, you must still act promptly if you want to challenge a Will because in New Jersey a resident who has received Notice of Probate of the Will has only four (4) months to contest the filing of the Will; non-residents have only six (6) months.
The reasons to challenge the validity of a Will, include:
A The Will was subject of a fraud;
B The Will was not properly executed;
C The person who signed the Will (Testator) did not have “testamentary capacity” to understand or sign the Will;
D The Testator was coerced or unduly influenced to sign the Will.
A. Fraud
It is fairly unusual but possible that a Will was signed as a result of someone’s fraudulent conduct.
For example, if a Testator is beguiled into signing a document without knowing what it is, what it says, or even that it is a Will. Other situations include where a beneficiary induces a Testator to execute a Will based on false facts (i.e. a suitor promises to marry the Testator if he is made a beneficiary under the Testator’s Will, where the suitor has no intention of marrying the Testator). In the context of a Will contest, fraud will not be presumed. Moreover, if the Testator learns of the fraudulent conduct and does nothing to change the Will over an extended period of time, it may be argued that the Testator affirmed the contents of the Will and, as a result, it may be upheld.
B. Due Execution.
In New Jersey, a type-written Will must be witnessed by two (2) persons, over the age of eighteen (18) years, both of whom witnessed the Will signing. It is helpful (but not necessary) for the Will to have a “self-proving affidavit” attached, which is signed by the Testator, the Witnesses, and a Notary.
If a Will is entirely in the handwriting of the Testator (called a “holographic” Will), New Jersey requires no Witnesses but it cannot be admitted to probate to the Surrogate; it must be admitted by the Court, upon filing of a Complaint and Order to Show Cause.
"In the next issue, we will discuss the other two grounds to challenge a Will listed above: Lack of Testamentary Capacity and Undue Influence. In the meantime, if you believe that a Will should be challenged because it is defective, for one reason or another, you should hire a seasoned attorney, who has significant experiences in this area of law. Do not delay with your decision to engage an experienced attorney because the law allows only a narrow window of time during which a caveat and/ or a Will contest may be filed.
- By Nancy Rice
- Published 11/11/2009
- Elder Care Law
