How to Contest a Will Because of Undue Influence
A will is a binding legal document in New Jersey if it complies with the requisite formalities. This being said, there are times when it may be necessary to contest a will because of undue influence or related circumstances.
What Does It Mean to Contest a Will?
Contesting a will means the will is challenged in probate court for one reason or another. New Jersey case law defines “undue influence” regarding a will as the act of someone who uses “mental, moral, or physical” exertion to convince someone in a confidential relationship to change, update, or draft their will in a certain way that favors that person. Other possible reasons to contest a will include:
• Improper structure
• Fraud
• Forgery
Showing Evidence of Undue Influence
Contesting a will due to undue influence puts the burden of proof on the part of the petitioner. There must be evidence showing the likeness of undue influence. However, once the possibility of undue influence of a will has been established, the burden of proof shifts to the person accused of influencing a person to draft a will in their favor.
Who Is Susceptible to Undue Influence?
Anyone drafting a will is susceptible to undue influence. However, some individuals are more so. These include senior citizens being cared for by family members and individuals with mental health issues.
Signs of Undue Influence
Most people consider the preparation of their will to be a personal or private matter. However, there are times when other loved ones may become reasonably concerned. Signs of undue influence or possible undue influence include:
• An unusually secretive attitude about a will
• Being afraid to discuss the terms of a will
• Not being willing to discuss what is in a will at all
• An unusually close relationship that forms just as a new will is drafted
• Changes to a will that occur after a caregiver arrives
Start Gathering Evidence as Soon as Possible
If you believe someone was unfairly influenced or taken advantage of during the will preparation process, act quickly by gathering as much evidence as you can. This may include obtaining a copy of the will if you are a loved one who is related to the individual and able to do so legally. It’s also important to attempt to talk to your loved one to determine if they are being pressured to make certain decisions.
What Can Be Done Before It’s Too Late?
While a loved one is still alive, it’s possible to intervene if the person is capable of being reasonable and listening to what you have to say. However, if the individual isn’t willing to discuss what you believe to be the case, there are elder care advocates who may be able to help.
Unfortunately, it’s often not possible to have suspicions confirmed about undue influence until after a loved one passes. Once the terms of a will become known, it’s equally important to gather as much evidence as possible. It’s also essential to take further steps if necessary to contest the will in court.
Preparing to Contest a Will
Gather all your evidence. Also, be clear about what you are contesting in the will. If possible, determine the date range when the will was likely changed or drafted if this information isn’t immediately available to you. Finally, determine if other family members are willing to act as witnesses during the court proceedings.
Contact a New Jersey Estate Litigation Lawyer
If you have concerns about undue or unfair influence affecting a loved one’s will, contact a New Jersey estate litigation lawyer from The Knee Law Firm in Paramus, New Jersey. Our lawyers have more than 60 years of knowledge and experience to bring to the table, so you don’t have to handle this delicate situation on your own. We’re accessible via our online form and by phone at 201-996-1200.
I have concerns about my stepmother (90) being influenced by a brother of hers from another State. He spoke to her via phone in August and for 2 months now my stepmother has isolated herself from my sister and I who are DPOA’S of financial and medical. Yesterday, I received a call from my stepmother stating we are no longer DPOA’S.
My sister and I have been caring for her for over 4 years with no issues until this brother stepped in.
Our Father passed 4 years ago and made sure she was set up financially and when she updated her Will, she put myself and sisters as beneficiarys.
I’m so scared that the brother had her change all of this.
My Dad wanted us to have whatever was left once she passed. I don’t know what to do to protect these assets.
The Financial Advisor was a good friend of my Dads, and I told him not to do any changes until he spoke to me.
Please, can somebody to anything to help?
Give us a call to schedule an appointment to see if we can help.
I recently filed a lawsuit against the trustees of my fathers irrevocable trust. They told me and my father, they put everything in the trust which I recorded on audio. I found out a new estate plan was created naming the trustees as my fathers agents with unlimited gifting powers. My father is dependent on my brother who lives with him. The Judge and my attorney’s were aware a confidential relationship existed and there were suspicious circumstances. The judge would not hear my case against the trustees unless I added my father. She then said if he says he put the money where he wanted it, she would hate to have to file an attorney fee application. I signed a settlement agreement out of fear of going forward. Now I’m learning about the presumption of undue influence in estate plans. My attorney also presented evidence showing undue influence. Do you consider taking cases on a contingency basis?