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James J. Costello, Jr.
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James J. Costello, Jr.
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Can I Contest A Will?

The two most common reasons for contesting a Will in New Jersey are:  (1) The person who made the Will lacked “testamentary capacity” at the time he or she signed it, and (2) the Will was the product of “undue influence.”

Testamentary capacity to execute a Will is a low bar in New Jersey.  Essentially, a person only needs to know roughly what they own and who are the “natural objects of their bounty,” which typically means close family, such as a spouse, children, grandchildren, etc.  It does not mean that a person must leave their assets to the natural objects of their bounty, only that they know who they are.  The low bar makes is difficult, but certainly nowhere near impossible depending upon the circumstances, to challenge a Will based on lack of testamentary capacity.

The more common approach to challenge a Will is based on undue influence.  Undue Influence generally occurs when the provisions of a Will reflect the desires of someone other than the person who made the Will.  The classic example is a parent of multiple children who has a Will that provides for each child equally, but then changes the Will to favor a caretaker child over the others when the parent gets sick.  The modification to the Will is not automatically the product of undue influence in that circumstance, and, in fact, the Will is presumed to be valid in the eyes of the law and not the product of undue influence.  However, as discussed below, it is relatively easy to shift the burden to the proponent of the Will (typically the favored child) to prove that the Will was not the product of undue influence.

Two elements must exist in order for the challengers of the Will (the disfavored children) to shift the burden to the proponent of Will to show that the Will was valid:  (1) there must be a “confidential relationship” between the proponent and the person who made the Will (the favored child and the parent in the above example), and (2) there must be “suspicious circumstances” surrounding the execution of the Will.  A confidential relationship is one of trust and reliance, which typically, but not always, exists in a parent-child relationship.  Suspicious circumstances include a drastic and sudden change in the provisions of the Will, extensive participation in the making of the Will by the favored beneficiary or an unexplained change in attitude towards beneficiaries for whom the decedent previously had affection.

In our next blog entry, we will address how to contest a Will.

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James J. Costello, Jr.
Member
James J. Costello, Jr.
Visit Profile
Related Posts
Making a Will? Don’t Forget About Funeral Arrangements
Undue Influence Can Unwind Lifetime Gifts
Promised Inheritance? Make Sure It’s in Writing!
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