State law has established several grounds by which someone can contest a will
The answer to the question posed in the title is: Yes, you certainly can contest a will. Still, you’ll need to put a little thought into your situation—and you will probably need experienced legal representation to guide you in decisions and the court system to obtain the best possible outcome.
To contest a will in New Jersey, you will need two key factors: standing and grounds for bringing a case to court.
To figure out if you have standing, you need to know whether or not you are interested in the will that a court will recognize. Courts recognize two kinds of people as having legal standing and an interest in a will:
- People directly named in the will, also known as “beneficiaries.”
- People who would benefit if the current will were invalidated. An example would be a person listed in a previous version of the will whose portion was cut in the current will.
- In addition to standing, you will also need to have grounds for contesting a will. Your perception that the will is unfair is not considered grounds by a court. State law says that as long as the writer of the will is or was of sound mind and is writing of his or her own free will, they are free to distribute their assets in almost any way. That can mean that one child gets more than another, or one child is excluded, or a large portion goes to a favorite charity.
If you need to speak to an attorney about the possibility of contesting a will in New Jersey, you can confidently call Chamlin, Uliano & Walsh at 732-229-3200. Our team of attorneys is equipped to provide you with the tools you need and the dedicated advocacy to turn the tides in your favor when disputing the validity of someone else’s will. Our team proudly serves all Jersey Shore area, frequently assisting clients in places like Shrewsbury, Hazlet, Oakhurst, Middletown, Rumson, Asbury Park, Howell, Colts Neck, and Little Silver. To find answers and assistance for your unique needs, we encourage you to contact us today.
How do I Contest a Will in New Jersey?
Six most common Grounds for Contesting a Will
- The most commonly employed reason to contest a will is “undue influence or coercion.” To be effective in contesting on these grounds, you must convince a judge that there is a “presumption of undue influence” by proving that there was a relationship of trust and dependence or that there were circumstances that made you suspicious: behavior on the part of the defendant such as excluding family members or friends. If you can prove this happened, the burden of proof that the will is valid is placed upon the defendant.
- Another common ground for contesting a will is forgery, fraud, or mistake. If you can find evidence that shows that the person writing the will was misled in some way or that he did not understand that he was making and signing a will, then you’d have grounds with which to go to court.
- A third ground for contesting a will is the idea of “incapacity.” There are some easy hurdles you might be able to cross in this category. 1) If a guardian had been appointed for the person and then they wrote a will, that document is invalid. 2) If the court had previously ruled that the person was incapacitated and then he or she wrote a will, then his or her will is invalid. There is another hurdle, a more difficult one to cross: If testimony or medical records show that the person writing the will could not have understood what he was doing when he wrote the will, then the court can deem the will invalid. But the problem is that the threshold for mental capacity in people writing wills is low, even lower than the threshold for writing a contract. The person writing the will needs only to understand the property that he or she is bequeathing and to whom he or she is directing it.
- The fourth ground we’ll discuss here is the issue of the person writing the will failing to conform to legal formalities. In New Jersey, the formalities for wills are that the person writing the will sign in front of two witnesses, who also sign the document. If the will you want to contest doesn’t stick to those formalities, it can be challenged—but may not be overturned. The court is free to decide that a simple handwritten will that has no witnesses does actually show the intent of the person writing the will and is therefore, valid.
- A fifth ground exists when the will is so vague or poorly expressed that the court struggles to ascertain what it means. This is not an issue of the will’s validity but an issue of the meaning of the will. In a case like this, the court reviews letters, and previous versions of the will and considers the context around the writing of the will. The court looks for “probable intent” and may apply that concept to override the face-value meaning of the words in the will.
- The last grounds for contesting a will that we’ll discuss is the idea of “elective share.” According to state law, the spouse of a person who wrote a will and is now deceased is entitled to at least 1/3 of the estate regardless of whatever else the will may say. That’s true unless one of the following three statements is true: the spouse had clearly relinquished his or her share, or if the spouse showed intent to divorce, or if the spouse somehow caused the decedent’s death by his or her actions.
There’s one other crucial element besides standing and grounds, and that’s the element of “Is this case winnable?” You will need to have at least one consultation with an attorney experienced in litigating estates and bequests to answer that question. The attorney can evaluate your case, see its strengths and weaknesses, and help you as you decide whether it is worth your time and effort to contest the will and take the matter to court.
Contact our Team of Attorneys for a free and confidential consultation at our Monmouth County Office
If you think you might have standing and grounds to contest a will, please call the knowledgeable and experienced wills and estates lawyers at Chamlin, Uliano & Walsh today for a free consultation. We can help discern whether or not your case is worth pursuing and, if it is, we can guide you all the way through the process and represent you in court with experience and skill.
Our skilled team supports clients in Red Bank, Freehold, Long Branch, and Monmouth County as a whole, in many different types of wills, trusts, and estates matters. Feel free to call (732) 440-3950 for a free consultation with one of our estate attorneys.