When and How to Challenge a Will

When and How to Challenge a Will

There are various reasons for wanting to challenge a will in New Jersey. It is important to consider the required criteria and time limits when challenging any will. You will want to consider contacting an attorney before taking any steps, as they will have suggestions as to the potential success of the claim and be able to explain the lengthy and at times emotional litigation that will follow.

What is a Will Contest?

Contesting a will means that you are, for any reason, challenging the validity of the document. This may be for a number of reasons, and there are several approaches to consider. In order to contest a will, you have to be someone of standing. It is often children who feel as though they have been treated unfairly that challenge a will, but anyone whose name is on the face of the will or who would otherwise inherit from the testator is able to do so.

When Can I Challenge a Will?

The first way to challenge a will is by filing a Caveat. This must be done prior to the probate, which takes place with the death certificate and official will. Once a Caveat is filed, the probate will not move forward until there is a hearing to discuss the validity of the will.

If you want to challenge a will after the probate, you still have the option to do so This is when you can file a Verified Complaint, which can result in an Order to Show Cause. This Complaint must be filed within four months of the probate, if you are a resident of New Jersey. If you reside outside of New Jersey, you have six months to file the Complaint. A Complaint can be made under several circumstances, the most common being Undue Influence and the Will being executed improperly. Undue Influence can encompass several situations, including a confidential relationship, suspicious circumstances, and the person filing the will being found to have not been competent at the time it was filed. Any of these situations can be grounds for contesting or challenging a will.

In simpler terms, Undue Influence occurs when someone uses their power to influence another person as they are making their will, manipulating them so that their free agency is compromised. While it can be difficult to prove this case, you can accomplish it by presenting a confidential relationship and suspicious circumstances. A confidential relationship occurs when one person (in this case, the person drafting their will) places trust in another, whether that is natural or a product of manipulation and unjust power dynamics. In addition to this, there must be suspicious circumstances. For example, if the person drafting their will acts out of character, there is an abrupt change to their plan that isn’t explained, or the beneficiary of the will is too involved, there would be a reason to believe suspicious circumstances occurred.

Another argument to make is that the person drafting their will was not competent when making or amending their will. A person must be competent and have free agency when drafting their will. In order to challenge a will this way, it must be proven that the person was in fact not competent at the time the will was made. Keep in mind that timing is especially important when making this case.

Finally, a will may be challenged if it was not executed correctly. In order for a will to be executed correctly, it must be in writing and signed by the person making the will (Testator) and at least two witnesses. The witnesses must have either seen the will being made in real-time, acknowledge the testator’s signature, or confirm the testator’s acknowledgment of the will. If this process is not done properly, one may argue that it is not valid.

What Happens if I Challenge a Will?

When a will is contested, there is often a hearing, followed by discovery between the involved parties. The process oftentimes takes over six months and depending on the size of the Estate and the amount of discovery can take over a year. A trial will be scheduled without a jury, as the Judge will make a decision alone. If necessary, a party of interest such as an infant will be represented by a guardian who must act in their best interest.

Again, it is vital that before making the decision to challenge a will, you at least consider speaking to an attorney. They will be able to better direct you and help you decide if the process is worthwhile and the likelihood of the court siding with you. There are instances where simply having an attorney investigate may resolve a dispute or concern over the validity of a Will. It is often difficult because a loved one has recently passed and emotions generally are running high, but if you have concerns over the validity of a will, or anything related to the late family member’s estate, it is better to act quickly. By waiting to investigate the risk of evidence going missing, as well as the Estate’s assets, only increases.

Have questions on wanting to challenge a will or any general estate planning questions? Contact the Experts at Ward Shindle & Hall today!
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