The 5 Most Common Reasons Wills Face Challenges in New Jersey

In this blog series, we frequently stress the importance of a properly constructed will. Having an up-to-date will drafted by an experienced estate planning attorney is an absolute must, regardless of your level of wealth. Disputes over a will occur more frequently than you might imagine. This week, we explore some of the most common reasons wills are challenged in New Jersey. With these considerations in mind, you will be equipped to ensure your last will and testament is ironclad, thereby greatly reducing the chance a disgruntled family member attempts to invalidate your wishes in court.

Lack of Capacity

One of the most common accusations raised in a New Jersey will challenge is that the testator, the will-maker, lacked the mental capacity to execute a valid will. The testator needs what is known as “testamentary capacity”. To possess testamentary capacity, the testator must be at least 18 years old and capable of knowing and understanding the extent of their property, their heirs and beneficiaries, their distribution scheme, and how these pieces work together in concert with each other. While this might appear to be a high bar for comprehension, courts in New Jersey start with the presumption that the testator was of sound mind during the will’s drafting. It is the burden of the will challenger to establish by “clear and convincing evidence” that the testator lacked capacity at the time of signing. Strong evidence must be presented in this regard, and usually comes from disinterested witnesses and physicians familiar with the testator’s mental condition. Importantly, those with dementia and failing mental health can still execute a valid will if they have moments of lucidity and understanding. The most assured method of avoiding questions surrounding the mental state of loved one executing a will is working with a qualified estate planning attorney who can evaluate and attest to the their understanding of their estate plan.

Improper Execution

In addition to the mental component, New Jersey prescribes specific formalities for executing a valid written will. Wills are often challenged if they are not signed in the physical presence of two adult witnesses. Preferably, these witnesses should be disinterested, meaning they do not stand to benefit from the will in any way. While it is true that you do not absolutely need an attorney or a notary to execute a valid will in New Jersey, this lack of professional oversight can lead to additional requirements when your loved ones probate your will after you pass away. For example, the court may require your witnesses to testify that they witnessed you sign your will and that you were of sound mind at the time. This can be especially vexing if a long time has passed since the signing date, and witnesses are either difficult to track down or deceased. It is a competent attorney’s job to ensure your will is executed properly and is self-proving, meaning it is witnessed and notarized such that court review of witness testimony is not necessary.

Undue Influence

One of the foremost reasons a will is contested in New Jersey is that an heir believes an individual close to the decedent exerted undue influence over them, thereby compelling them to execute or modify a will for their benefit. The classic example of undue influence is a caretaker capitalizing on the vulnerability of an older and infirm individual to orchestrate a reconfiguration of their estate, often to the detriment of natural heirs and beneficiaries. The ultimate question in an undue influence situation is whether the testator was under such mental, emotional, or physical coercion that his or her free will was overridden. If a confidential relationship exists between the testator and the alleged influencer, coupled with suspicious circumstances, a New Jersey court may presume the testator’s will was a product of undue influence. Once a presumption of undue influence is established in court, the onus shifts those probating the will to prove that it was written voluntarily and that no such nefarious activity occurred.

Discovery of Newer Will

Ordinarily, a will expressly invalidates all prior wills made before it. Therefore, if a more recent will surfaces after an older will is probated, the newer version typically takes precedence as the authentic memorialization of the decedent’s wishes. While it is presumed that the testator’s newest will is their true will, oftentimes there are disagreements as to which version is valid. Particularly contentious wills are those executed during a testator’s final hours of life and those made in relative secret. To avert potential confusion, it is wise to destroy originals and copies of older wills. Additionally, inform your chosen executor and other close family members as to the location of your most recent will and other important documents. Ideally, your estate planning attorney will have a record and a copy of your latest will on file.

Disgruntled / Disinherited Heirs

A significant proportion of individuals contesting wills are close relatives, often children, who find themselves disinherited. There is a myriad of reasons why our clients decide to omit immediate family members from their estate plans. Frequently, this arises from strained relationships or because the testator already provided for them extensively during their lifetime. Regardless, an heir who feels slighted may cause trouble for your estate via a will challenge in the Surrogate’s Court. If you plan to disinherit a child or close family member, it is imperative that the language in your will be properly crafted to adequately explain your decision.

Avoid Conflicts

As you construct your estate plan, you have enough to consider without worrying about your will becoming the subject of a court battle. Contesting a will is costly and can inflict deep emotional wounds upon a family. Safeguard your loved ones from the anguish of a will contest by ensuring your will is updated, clear, and properly executed. Ensure everyone in your circle of trust, from your family to your fiduciaries and advisors, is aware of your plan and ultimate wishes. Contact the Choi Law Firm today to discuss how we can assist you in preventing these potential conflicts after you are gone.