A recent New Jersey appellate decision offers an important lesson for families involved in estate disputes: losing a will contest does not necessarily mean the challenge was unreasonable—or that the plaintiff must bear all legal expenses.
In In the Matter of the Estate of Thomas DelGatto, Jr., decided October 21, 2026, the Appellate Division upheld the disputed will but also affirmed an award of more than $350,000 in legal fees and costs to the unsuccessful plaintiffs, payable from the estate. The opinion is unpublished, so it does not establish binding precedent for other cases. Still, it provides a useful illustration of how New Jersey courts evaluate will contests and related fee applications.
A Major Change to the Estate Plan
Thomas DelGatto, Jr. was involved in a family-owned business. His 2018 will provided that, if certain conditions were met, $5 million would be divided among his father’s surviving grandchildren. At that time, the group included the nieces and nephews who later challenged his final will.
Thomas married and had two daughters. After being diagnosed with pancreatic cancer, he revised his estate plan several times. A February 2021 will retained the $5 million provision for the grandchildren. Just months later, however, Thomas signed a new will that removed the provision, replaced his father as executor and trustee with his wife, and increased the share passing for the benefit of his wife and children.
Following Thomas’s death, the June 2021 will was admitted to probate. His nieces and nephews filed suit, alleging that his wife had exercised undue influence and that Thomas’s attorney had removed the grandchildren’s provision without Thomas’s knowledge or permission.
Why the Will Was Upheld
In New Jersey, influence becomes legally “undue” when it overcomes a person’s free will and causes that person to distribute property in a way he or she otherwise would not have chosen. Affection, persuasion, or the opportunity to influence someone is not enough by itself.
The Appellate Division found no credible evidence that Thomas’s wife pressured him to change his will or even knew its contents before his death. She did not participate in his estate-planning meetings and did not attend the signing. The court also rejected the argument that marriage alone created a presumption of undue influence.
Other evidence supported the final will. Thomas’s relationship with his father had deteriorated, and his attorney stated that Thomas instructed him to remove the grandchildren’s provision. Thomas later sent messages confirming that he wanted his wife to control his estate and that his father was not to change anything. The court concluded that the final will reflected Thomas’s most recent intentions: prioritizing his wife and two young children.
Why the Unsuccessful Contestants Received Their Fees
Although the will challenge failed, the trial court ordered the estate to pay the plaintiffs’ attorneys’ fees of $329,445.40 and costs of $23,887.61. The Appellate Division affirmed that award.
New Jersey generally follows the “American Rule,” meaning each party pays its own attorney. Probate cases are different in certain circumstances. When a will is ultimately admitted to probate, a court may direct the estate to pay a contestant’s fees if there was reasonable cause to question the will’s validity. An award is discretionary, not automatic.
Here, the contestants had been named to receive a substantial bequest in two earlier wills, only to have that provision disappear from the final will. There were also questions about the drafting process that required document review, depositions, motion practice, and investigation of the attorney who prepared the will. The trial judge found that the challenge was neither weak nor baseless and that the legal work performed was reasonable.
Practical Takeaways for New Jersey Families
First, a dramatic change in an estate plan does not automatically prove wrongdoing. Courts look for evidence showing what the person actually intended and whether another individual overcame that person’s independent judgment.
Second, careful documentation matters. Attorney notes, draft wills, letters, text messages, witness testimony, and evidence about family relationships may become critical after someone dies.
Third, attorney-fee awards in estate litigation are highly fact-sensitive. A contestant should not assume the estate will pay simply because the dispute concerns a will. The court will consider whether there was a legitimate factual basis for the challenge, the value of the estate, the likely benefit of the litigation, and whether the fees were reasonable.
For New Jersey residents facing a sudden will change, suspected undue influence, or questions about how an estate plan was prepared, early evaluation of the documents and surrounding circumstances can help determine whether litigation is justified—and what the financial risks may be.
