How Do I Contest A Will?

Our last blog entry addressed common ways to contest a Will - lack of testamentary capacity and undue influence.  In this blog entry, we will address how to go about contesting a Will.

The simplest way to contest a Will is by filing a "Caveat."  In New Jersey, most Wills are probated through County Surrogate Courts.  Probating a Will is simply the process by which a Will is proven to be a valid legal document and through which the appointment of the Executor named in the Will (also known as a "Personal Representative") is certified.  New Jersey law provides that a decedent's Will cannot be probated any earlier than ten days after he or she passes away.  Within that time, or any time before the Will is probated, a Caveat can be filed with the Surrogate.  A Caveat is a simple signed statement (usually one or two lines in length) that says someone contests the probate of a Will.  It does not need to state a reason for the contest.  Once filed, the Will cannot be probated by the Surrogate.  Instead, the proponent of the Will (typically the named Executor) must file an action in court to have the Will admitted to probate.

Wills can also be contested after they are probated by filing an action in court.  The action must be filed within four months after probate of the Will or six months if the contestant lives outside of New Jersey.  Unlike when filing a Caveat, the contestant must state some basis for contesting the Will, such as lack of testamentary capacity or undue influence.  A hearing is then held typically within 30 to 60 days of the time the action is filed, at which a Judge sets a schedule for allowing each side to gather information (known as discovery) to support their case and to take depositions of witnesses.  Many times Judges will order the parties to go to mediation to try to settle the case before proceeding to trial.  Given the cost, both financial and emotional, of litigation, many cases are in fact successfully settled during mediation.

It is important for any contestant to determine what the result of a successful contest would be.  New Jersey recognizes a legal doctrine providing that in most cases where a Will is determined to be invalid, the decedent's prior Will, if there is one, is revived and the estate is distributed according to the provisions of that prior Will.  Absent a prior Will, the decedent's estate would be distributed according to New Jersey Intestacy Laws, which essentially provide for distribution to surviving family members based on their relation to the decedent (with preferences for a spouse, children, grandchildren and ancestors).  A putative contestant therefore needs to ascertain the existence or absence of prior Wills before proceeding too far down the road of a contest.

Our next blog entry will switch gears and address the tax consequences to beneficiaries of estates and trusts.