A will can be contested in a New Jersey probate proceeding on a number of grounds.
- Lack of Proper Formalities. To make a valid will under New Jersey law, a will shall be: (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and (3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will. J. Stat. § 3B:3-2. If a will does not comply with these formalities, the will can be contested and found invalid.
- Undue Influence. Undue influence has been defined by the New Jersey courts 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. There are two elements necessary to give rise to a presumption of undue influence. First, there must be a confidential relationship between the testator and a beneficiary 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. Second, there must be the presence of suspicious circumstances that, in combination with such a confidential relationship, will shift the burden of proof to the proponent. Such circumstances need be no more than slight.” Matter of Will of Liebl.
“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 v. First Nat’l State Bank. “Suspicious circumstances” can include the testator’s weakened mental capacity, a drastic change in the testator’s testamentary plan, including a new drafting attorney, and the involvement of the substantial beneficiary in the preparation and execution of the will.
- Lack of capacity. A testator is required to have capacity to make a will. The “gauge of testamentary capacity has been stated to be 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 these factors to the others, and the distribution that is made by the will. “In re Livingston’s Will. Typically, lack of testamentary capacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed. A will can be declared void if lack of capacity can be proven.
- A will in New Jersey can be contested on the grounds that it has been revoked. A will or any part thereof can be revoked two ways under New Jersey law. First a will can be revoked by (1) the execution of a subsequent will that revokes the previous will or part expressly or by inconsistency; or (2) by performing a revocatory act on the will, if the act is performed with the intent and for the purpose of revoking the will. Revocatory acts can include burning, tearing or cancelling the will. N.J. Stat. § 3B:3-13. Therefore, if someone offers a will for probate, and you have a later, inconsistent will or an instrument declaring the will revoked and properly signed and attested, you have grounds to challenge the earlier will as revoked.
How long do I have to contest a will in New Jersey? A will contest can be filed before a will is admitted to probate by filing a “caveat.” A will contest can also be filed after a will has been admitted to probate, but the time limits are strict. A will contestant that is a resident of New Jersey has four months from the admission of the will to probate to challenge the will. N.J. Court Rule 4:85-1. A non-resident has six months from the date of probate to file a will contest. If the will contest is filed outside of these time periods, it will be barred.