Understanding a will contest in New Jersey

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Understanding A Will Contest In New Jersey

Most New Jersey residents view their will as the last step in determining how their assets will be distributed upon their death. In most cases this view prevails, but in other cases, one or more heirs (or potential heirs) will object to one or more specific bequests in a will. In these cases, the dissatisfied heirs may decide to commence a lawsuit to challenge the validity of the will. These lawsuits are commonly called “will contests.” Understanding the legal basis for a successful will challenge may be helpful in drafting a will that can be immune to a challenge.

Basic reasons behind a successful will contest

Two basic reasons will support a successful will contest: proof that the person making the will (the “testator”) lacked sufficient mental capacity to execute the will or proof that the testator was manipulated to make certain bequests to particular individuals.

If a will is completely invalidated, the court will conduct the probate of the testator’s estate as if the will had never existed. If only a part of a will is determined to be invalid, that provision will be ignored, and the remainder of the will be given the effect intended by the testator.

Lack of testamentary capacity

In order to give binding effect to the testator’s wishes regarding distribution of assets, the testator must be proved to have sufficient mental capacity to understand the legal effect of the will and the effect it will have on the distribution of assets. If a person challenging the will is able to prove that the testator lacked sufficient mental capacity to understand the effect of the will, the court may declare the entire will to be invalid. Generally, proof of insufficient mental capacity is submitted in the form of testimony by mental health professionals who have treated the testator.

Fraud, forgery and undue influence

Fraud, forgery, and undue influence are legal terms that refer to methods used by persons challenging the will to prove that the testator was deprived of testamentary capacity by the illegal acts of persons who want to share in the testator’s property.

Fraud is the intentional misrepresentation of a material fact that the testator relied upon in making the will. Forgery is similar to fraud, but it generally requires an inauthentic signature on a document that the testator relied upon. Undue influence is the manipulation of the testator’s free will by a person who is taking advantage of a relationship with the testator for the sole purpose of manipulating the bequests made by the testator. An allegation of undue influence is often associated with the claim that the testator lacked free will when the will was executed.

Other grounds for challenging a will

Other grounds that can be used to challenge a will are failure to follow state-imposed formalities, such as two competent witnesses and the testator’s signature on the will. Any ambiguity in the bequests in the will may also lead to a successful challenge. No will contest should be pursued without the help of an experienced probate attorney.


Michael Ritigstein is a Founding Partner of the firm concentrating his efforts in supporting the firm's litigation, corporate and estate matters. Mr. Ritigstein graduated from the University of Delaware in 1996 and Seton Hall University School of Law in 2000. In 2007 he received a Masters of Law in Taxation with a concentration in Estate Planning, from Temple University's Beasley School of Law.

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