When a New Jersey resident passes away, their estate must go through the probate process before their assets are distributed in accordance with the terms of their last will and testament. During probate, the decedent’s will is verified and the estate’s debts are settled before any assets are distributed. Verifying the decedent’s will is usually a fairly straightforward process, but that changes if the validity of the document is contested.
What Makes a Will Valid in New Jersey?
A will is considered valid in New Jersey if it is printed, typed or written by a testator who is at least 18 years of age. Handwritten wills, which are also called holographic wills, must be signed by the testator, but they do not have to be witnessed. Printed or typed wills must be signed by the testator and at least two witnesses. It is not necessary to sign a will before a notary in New Jersey, but doing so is advisable because it will create a self-proving document and speed up the probate process.
Who Can Challenge a Will in New Jersey?
Only parties who have standing can challenge a will in New Jersey. A party has standing if they would gain if the will is declared invalid. Parties with standing could include the decedent’s creditors, beneficiaries named in a previous will and relatives that would have inherited property if the decedent had passed away without leaving a will. Spouses, children, parents and siblings can all inherit property under New Jersey’s intestate succession laws.
Grounds for Challenging a Will
Probate courts presume that wills are valid and reflect the wishes of the people who drafted them. To overcome this presumption, a party challenging a will must establish that the document is defective in some way. A will can be challenged in New Jersey if it was not properly executed, the testator lacked testamentary capacity, the testator was under duress or the undue influence of another when they signed the will, or the document was created through fraud or error.
Improperly Executed Wills
A will is considered to be improperly executed in New Jersey if it is not printed, typed or written, signed by the testator or signed in the presence of witnesses if it is not a holographic will. Wills that are signed by the testator and witnesses could be considered improperly executed if the witnesses did not sign the document within a reasonable amount of time. Issues like these may be avoided by having a will checked by an experienced New Jersey estate litigation lawyer.
Testamentary Capacity
A testator lacked testamentary capacity if they were under the age of 18 or their mental faculties were diminished by illness or injury when they drafted their will. A person is considered to be of sound mind when they are aware of their surroundings and the consequences of their actions. If a decedent was suffering from dementia when they passed away, their will would be considered valid if they had testamentary capacity when they drafted the document. When a will is challenged, the probate court will presume that the decedent had testamentary capacity. This means that the onus will be on the challenging party to establish that their mental faculties were diminished.
Duress and Undue Influence
A will is not valid in New Jersey if the testator lacked free will when they wrote and signed the document. To prove duress, the challenging party must establish by a preponderance of the evidence that the testator was being threatened or extorted when the will was drafted and signed. To prove undue influence, the challenging party must establish that the testator drafted and signed their will while under the influence of a person who they shared a confidential relationship with. A relationship is considered confidential when one of the parties has an
inherently weaker position. Attorney-client and parent-child relationships are confidential. A confidential relationship is only grounds for a will challenge when there are suspicious circumstances. In most will challenges based on undue influence, the suspicious circumstances are the provisions of a new will that greatly benefit the influencing party.
Fraud and Errors
A will challenge can be based on fraud or error if the testator relied on false information or was deceived when they drafted the document. In these situations, the challenging party must establish that the testator would have acted differently if they had known the truth. When fraud is alleged, the challenging party must convince the probate court that false statements were made knowingly and with the intention of deceiving the testator. This kind of will challenge is often made by beneficiaries who were disinherited because the testator believed they had passed away.
Preventing Will Contests
Will contests can divide families and prevent estate assets from being distributed in a timely manner. If you want to prevent your loved ones from becoming embroiled in a dispute, you should consult with an experienced New Jersey estate litigation lawyer. If you would like to discuss will preparation or any other estate planning matters, you can schedule a consultation with one of the attorneys at the Knee Law Firm by calling our Paramus office at (201) 996-1200.