Losing a loved one is always a difficult process. It becomes more difficult when you learn that you’ve been disinherited by your loved one in a “Deathbed Will.” Fortunately, there are steps that you can take to protect your interests, but it is important to note that timing is critical.
THE WHO
Only those who have “standing” may contest a Will. This generally means those that have the legal right or direct interest sufficient to bring forward a claim. This includes those who would inherit under NJ law should there be no Will (spouse, children, family members, etc.), and those who would inherit under an older Will, should the contested Will be found invalid (i.e beneficiaries disinherited by new Will).
THE HOW
A person who wishes to contest a Will has two methods available to them: a Caveat and a Verified Complaint.
Caveat. A Caveat is a challenge to the Will BEFORE it has been admitted to probate. The Caveat takes the probate of the Will out of the Surrogate’s Court, and places the matter in front of a Superior Court judge before an Executor is given authority to act. R. 4:82. This is the best means for a beneficiary to protect his or her interests before the Executor can get his or her hands on the estate assets.
Verified Complaint. A Verified Complaint is a challenge to the Will AFTER it has been admitted to probate. The beneficiary (or disinherited beneficiary) files a complaint asserting a challenge to an already probated Will. In this scenario, an Executor has already been appointed by the Surrogate’s Court, and currently has the authority to access the decedent’s assets.
THE WHEN
Caveat. N.J.S.A. 3B:3-22 gives challengers, at the minimum, a ten (10) day period to file a Caveat, because a Will may not be filed for probate until ten (10) days after the Decedent passed away. This time period is not specifically strict, however, because the appointed Executor may choose to not file for probate right away. However, if the Will has been filed for probate and accepted by the Surrogate’s Court, a challenger may no longer file a Caveat.
Verified Complaint. R. 4:85-1 gives a NJ resident four (4) months to file a complaint challenging a Will, and an out-of-state resident six (6) months. There are a few exceptions to this rule, including where the probate was obtained based on “fraud upon the court” (R. 4:50-3), an after-discovered Will (R. 4:85-3), and possibly if you were never given proper notice under R. 4:80-6 that the Will was probated. In addition, a Court may grant a challenger a thirty (30) day extension to the above deadline when the challenger can show “good cause and the absence of prejudice” (R. 4:85-2).
THE WHERE
Caveat. The Caveat is filed with the Surrogate Court of the county that the decedent resided in when he or she passed away. This process then moves the filing of the Will from the Surrogate Court to the Superior Court, Probate Part.
Verified Complaint. A Verified Complaint is filed with the Superior Court, Probate Part.
THE WHY
The why is the easiest question: you have been disinherited under a new Will. A disinherited beneficiary may seek to invalidate the Will with claims of undue influence and/or lack of testamentary capacity.
Undue Influence. Undue influence occurs when a decedent (at that point the “Testator”) is coerced by another into doing something that he or she would not have done by themselves without the coercion. In re Livingston, 5 N.J. at 73. In order to prove undue influence a challenger must prove (1) that a confidential relationship existed between the “undue influencer” and the decedent, and (2) “suspicious circumstances.” In re Livingston.
Lack of Testamentary Capacity. In general, there is a legal presumption that a decedent was of sound mind and competent when signing a Will. Haynes v. First Nat’l Bank of NJ, 87 NJ 163. Thus, a challenger needs to present clear and convincing evidence that the decedent did not have the requisite capacity, which is defined as a “very low degree of mental capacity.” Matter of Will of Liebl, 260 NJ Super. at 524. This threshold is as follows: “whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged in; the relation of each of the factors to the others; and the distribution that is made by the Will.” Gellert v. Livingston, supra, 5 NJ at 73.
If you or a loved one has any concern about the probate of a Last Will and Testament, it is important to consult with an attorney sooner, rather than later. At Hynes Law Group, we are dedicated to our clients and ensuring that their interests are protected. For readers of our blog posts, we offer a free phone consultation regarding possible Will contests. To take advantage of this offer, please fill out our “Contact Us” form at http://www.hyneselderlaw.com/contact-us/ and type “Will Contest” in the comments section, or call us at 908-514-8008 and be sure to mention that you read this blog post.
-Jesse R. Hynes, Esq.
Hynes Law Group
2 South Avenue East, Suite 200
Cranford, NJ 07016