How to Challenge a Will

Author: Wolfe Ossa LawCategories: Elder Law

Contesting a Will is a type of legal action brought to challenge the validity of a Last Will and Testament. The rules governing Will contests are state-specific so the process will vary from state to state. In most instances, you can start such a lawsuit at one of two points in time.

The Procedure For Contesting A Will

A disgruntled relative or heir cannot simply contest a Will because they do not like how they were treated in it. They must have standing to sue and have grounds to bring such an action.

To have standing means that the person bringing the lawsuit has a financial interest in the estate.  The person suing is typically a named beneficiary in the Will or an heir-at-law of the deceased person. An heir-at-law is someone who would be entitled to inherit from a deceased person if he or she did not leave a Will. This means that the challenger must either be a decedent’s next-of-kin, legal heir or someone who is set to inherit from the decedent’s estate as a named beneficiary.

Grounds are the legal basis for not respecting the terms of the Will. Will challenges often allege that the decedent lacked the mental capacity when the Will was signed to understand what they were doing or the decedent was unduly influenced by someone when making their Will. Other common grounds include fraud or procedural mistakes made when the Will was signed.

Pre-Probate Challenge

A Will can be contested before it’s admitted to probate by filing a caveat. A caveat can be filed in the Superior Court or with the Surrogate of the county in which the decedent lived at death. If there is any doubt as to which is the proper county to file a caveat, the challenger should file a caveat in all of the counties where the decedent’s Will could be probated. The challenger is aided in some respects by New Jersey law which prohibits admitting a Will to probate until after ten days have passed from the testator’s death. Thus, the challenger has a bit of leeway in making a pre-probate challenge.

The person filing the caveat (called the caveator) will then receive notice and a copy of the petition for probate administration when the Will is ultimately submitted for probate. The Will cannot be admitted to probate until the caveator has had the opportunity to respond to the probate application, usually in hearing where the caveator can establish the grounds for not honoring the Will. Once the Will is admitted to probate, a caveat will not suffice.

Post-Probate Challenge

Once the Will is admitted to probate, the executor or personal representative of the estate has the legal authority and obligation to settle the decedent’s estate. The executor will then notify the beneficiaries named in the Will of the probate proceeding. Depending on state probate law, this legal notice will typically limit the time a beneficiary or heir-at-law has to contest the validity of the decedent’s Will. In New Jersey, the executor has to give ‘Notice of Probate’ to the beneficiaries within 60 days after the Will is probated. The challenger then must file a lawsuit within 4 months of the Will being admitted to probate (or 6 months if the challenger lives out of state). The challenger must file its lawsuit setting forth the basis for not honoring the Will within this time period. The court will decide the matter often by conducting a hearing that considers the grounds for not respecting the Will as written. Both sides will present witness testimony in court. As with most lawsuits, Will contests are often protracted but because family members are often involved, emotions can run high.

As you can see, there are many nuances to the process of contesting a Will and conversely, defending such challenges. Experienced and thoughtful counsel is key to successfully navigate the process. At E.A. Goodman Law, we provide sound legal counsel on these types of matters. Let our experience help guide you through this process. Contact us today.

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