While there are no guarantees in determining your chances of successfully contesting a will in NJ, it is important to understand certain factors the Court may look at to see if a will can be successfully challenged.
- Did an attorney prepare the will at issue?
If the will was prepared by an attorney, that attorney will be the primary witness as to the decedent’s mental state when the will was executed (which is one of the main reasons wills are challenged). Furthermore, understanding who hired the attorney to do the will can also be extremely important as if it were a beneficiary who paid the attorney to draft the will, it is quite possible that the will was prepared for the benefit of that beneficiary and not how the decedent truly wanted his/her assets to be distributed.
- What was the decedent’s mental state at the time the will was executed?
For a will to be valid, the decedent must have been of sound main and competent when it was signed. In other words, the decedent must have known that he/she was signing a will, that he/she owned certain assets at the time, and that he/se understood the ramifications of the distribution provisions in the will. Establishing these criteria can involve speaking with those present at the time the will was signed or other friends and family, and/or if necessary, reviewing the decedent’s medical records at or around the time of signing.
- Were the proper procedures followed during execution of the will?
Understanding the process by which the will was signed can be extremely critical in determining whether there is a basis to challenge the will on the grounds that it was not executed properly. Did the decedent sign the will? Were the two witnesses who signed the will completely disinterested? Was the will notarized as to all the signatures contained therein? Where was it signed and who else was present at the time? These are just some of the questions that should and must be asked.
- Did the Decedent have a prior will and if so, what changes were made?
At their heart, all will challenges assert that the will does not reflect the decedent’s true intent as to how their assets should be distributed. Changing a will significantly from a prior version is entirely permissible but the facts surrounding why it was changed could be extremely relevant in determining whether the decedent intended to make the changes. For example, if the decedent removed an heir from their will who was a listed beneficiary in the prior version, testimony from those who knew the decedent’s relationship with that heir at or around the time of the change will be extremely important in determining intent. Moreover, written communications from the decedent to others about that heir at that time would also carry significant weight.
- When was the will probated and are you out of time?
In New Jersey, the statute of limitations on contesting a Will is short, specifically only four to six months from when the Will was probated through the county surrogate (which varies depending on if the challenger is a resident of New Jersey or not). Thus, acting quickly is not only recommended, but it is also a requirement.
In summary, the chances of successfully contesting a will in NJ can vary depending upon the facts of each case. As such, if you think you may have a valid basis to challenge a will, it is highly encouraged that you consult with a qualified attorney as to your particular circumstances as soon as possible.
Should you wish to discuss your chances of successfully contesting a will in NJ with Jurista Law, please feel free to contact us anytime at 908-248-4870 to set up a free consultation.