In New Jersey, a will can be contested before it is admitted to probate. After that point, the statute of limitations to contest a will is four months. A person who resides outside the state at the time of the probate of a will has a time limit of six months to contest the validity of the will.
A judge may allow a party to contest a will after the statute of limitations has passed if the person can show there is a valid reason for doing so. For example, if the executor, the person who distributes property under the will, fails to send a notice that the will has been probated to all of the deceased’s beneficiaries, the parties who inherit under the will, this would be a valid reason.
How to Contest a Last Will and Testament
Contesting a will requires that the party have standing to do so. A person has standing if they are named in the will as a beneficiary or would stand to inherit property if the will was declared invalid. Family members are not the only persons or entities that can contest a will.
Charities, friends and business partners can also do so. In New Jersey, a contest to a will is called a caveat. The person with a concern must file a caveat with the County Surrogate Court or the Superior Court, Chancery Division, Probate Part.
In some counties, such as Monmouth County, the Surrogate’s Court handles only uncontested matters, or cases where there is no objection or controversy, so the Superior Court will be the appropriate court to handle a will contest. The Probate Part of the Superior Court has general oversight of Surrogate’s Court proceedings.
Submitting a Caveat to Commence Estate Litigation
A caveat is a simple statement that the plaintiff, the person filing the action, submits to the court. The caveat should contain:
- Plaintiff’s name.
- Plaintiff’s relationship to the decedent, the person who died.
- Date of death of the decedent.
- Decedent’s name.
- Personal representative for the decedent.
- Date the action was filed.
- Plaintiff’s signature.
- Attorney who represents the plaintiff, if any.
After a plaintiff files the caveat, the court will not admit the will to probate unless the proponent of the will files an action in Superior Court to have the will admitted. The court will then usually hold a hearing within 30 to 60 days after the plaintiff files the caveat.
The judge permits each side to gather information to support their case. This process, called discovery, allows the parties to take depositions of witnesses. A judge may order the parties to go to mediation to attempt to settle the case before trial.
Grounds to Contest the Validity of a Will
Common grounds to contest a will include fraud, duress, undue influence, incapacity, violating New Jersey law and the existence of multiple wills. Contesting a will can be successful once the plaintiff convinces the court that there is a serious concern about the will's validity.
Fraud is defined as knowingly utilizing false or misleading information to create a will or to influence the testator, the person who is creating the will to pass on their property. For example, if a testator’s attorney told their client they only had 100 shares of stock to give away, but the testator really had 1,000 shares, this would be fraud.
Duress and Undue Influence
Duress is defined as putting a person under threat to sign a will or add terms to a will. If a relative threatened to harm a testator unless the testator promised them something in the will, this would be duress.
Undue influence is defined as exerting a strong influence over the testator so as to significantly influence how the testator drafts the will. For example, if a relative says they will not drive the testator to the hospital for necessary visits unless the testator names them as a beneficiary, this could be seen as exerting undue influence.
Violation of New Jersey Law
Violating New Jersey law regarding wills can occur in a number of ways. A valid will must be in writing and signed by the testator. It must be witnessed by two individuals and signed by the witnesses.
Testamentary Capacity and Invalidly Signed Wills
The testator must be 18 or older and legally competent at the time the will is signed. If the testator was suffering from a mental impairment when they signed the will, the will can be invalidated. If the will is not in writing, it can be invalidated.
The existence of multiple wills is an issue when there is a newer will than the one admitted for probate. The prior will can be invalidated if the new will is valid.
No-contest Clauses in Wills
A no-contest clause (NCC), also called an in terrorem clause, is a statement in the will that disallows a beneficiary from receiving property if they challenge the will after the testator dies. A number of states refuse to allow NCC clauses to have any effect, but New Jersey will enforce these clauses. A court will allow a NCC clause to stand if a beneficiary does not have probable cause to challenge a decedent's will.
When a Will Is Invalid
If the court finds a will to be invalid and no other will exists, the decedent’s property will be distributed according to the New Jersey intestacy statutes. If the court finds the will to be invalid and another will exists, the court will examine that will to determine whether it is valid.
If it is valid, the decedent’s property will be distributed according to the terms of that will. If the second will is invalid, the decedent’s property will be distributed according to the intestacy statutes.
Division Under Intestacy
The New Jersey intestacy statutes provide that if the decedent:
- Had children but no spouse, the children inherit the entire estate.
- Had a spouse but no children or parents, the spouse inherits the entire estate.
- Had a spouse and children with that spouse, and the spouse has no other children, the spouse inherits the entire estate.
- Had a spouse and children with another partner, the spouse inherits the first quarter of the estate, but not less than $50,000 or more than $200,000, as well as half of the remainder of the estate. The children take the rest of the estate equally.
Assets Not Covered by Contest
Certain assets that are outside the decedent’s estate will not be affected by a will contest. These assets will go to whomever the decedent named as a beneficiary, whether or not the will is valid or the will contest is successful. Such assets include:
- Life insurance.
- 401(k) accounts.
- Assets in a living trust.
- Funds, securities or U.S. savings bonds registered on transfer on death (TOD) or payable on death (POD) forms.
- Funds in a pension plan.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.