by Paul W. Norris, Esq.

It is an eventuality that all of us will face during our lives, the loss of a loved one. Whether this loved one is one of your parents, a sibling, a relative, or a friend, litigation may arise concerning the Probate of their Will and in administering their Estate. Estate litigation is often emotional, costly and evokes emotions similar to that of a divorce proceeding. Often times, the Executor of the Estate may use the Estate’s assets to defend the Will which has been offered for probate. On the other hand, the contestant of the Will must often pay their own counsel fees with only the possibility of being reimbursed by the Estate. As such, prior to challenging a Will, an individual must first evaluate the value of the Estate and their potential gain as compared to the expenses they may incur in obtaining that relief. In addition, a party should consider the emotional trauma which is prevalent in Estate litigation. An Executor of the Estate, or a beneficiary whose bequest is being challenged, will have no other alternative than to defend against the challenge being levied against their interest.

In the State of New Jersey, there are essentially two basis under which in which to contest a Will. A party can seek to attack the validity of a Will by asserting that the Testator was not competent at the time the Will was executed. In general, a legal presumption exists that the Testator was competent at the time he/she executed the Will. In fact, the law only requires a minimal degree of mental capacity when executing a Will. Generally, the inquiry is whether the Testator comprehended the property of which he/ she wanted to dispose , the intended recipient of said property, and the act of executing the Will. Moreover, this comprehension must only be present at the time the Will was executed. Even if the provisions of a Will seem shockingly unnatural or unfair, if it appears that the Will was executed at a time the Testator was competent and had a free and unconstrained mind, then a Court should uphold the Will.

Should a party wish to challenge the validity of a Will based upon issues with the capacity of the Testator, they must overcome the presumption that the Will was valid. As such, a beneficiary who seeks to uphold the Will need not establish its validity, but instead, a party who wishes to invalidate a Will must establish the incapacity of the Testator at the time the Will was executed. A challenge to the capacity of a Testator often involves a review of any relevant medical records, testimony of first hand witnesses, as well as the examination of other factors which relate to the competency of the Testator at the time the Will was executed.

A party may also seek to challenge the validity of a Will based upon an allegation of undue influence. In general, this means that the Will was not the product of the decedent’s own free will and volition, but instead, was the product of undue influence asserted by another individual over the Testator which caused the writing to not reflect the decedent’s true intentions, but instead, the wishes of the party who asserted the undue influence. In order to establish the invalidity of a Will based upon an allegation of undue influence, the challenging party must present evidence which demonstrates that the type of conduct which occurred caused the decedent to execute a Will which did not accurately reflect his/her true intentions, but instead, those of the other party.

During a Will contest based upon allegations of undue influence, a party may be successful in shifting the burden of proof to the proponent of the Will to demonstrate that no undue influence was present in the execution of the Will. The shifting of the burden of proof may occur when there is a confidential relationship between the proponent and the decedent, such as any attorney/client relationship, a power of attorney relationship, or any other relationship where trust and confidence naturally exists. Should a party also establish the existence of suspicious circumstances in conjunction with the confidential relationship, it may shift the burden of proof to the proponent of the Will to establish its validity. Factors that the Court may consider in determining whether a Testator was subjected to undue influence concern the decedent’s health at the time the Will was executed, the relationship between the decedent and the individual who benefitted by the newly drafted Will, and whether the decedent was in good mental and physical health at the relevant time. There is no set formula in this regard; however, factors which demonstrate a mental or physical weakness may render the individual more susceptible to undue influence.

During a Will contest, there is often the possibility that a Will which was executed prior to the one which is disputed by the parties may become relevant during the course of the proceedings. The reason this previous Will may become relevant is if the current Will which has been offered for probate is deemed invalid by the Court. In that event, the Court can probate the previous Will to determine the distribution of the Estate property. The question becomes, however, as to what is the best way for a Court to decide the validity of these Wills. Often, the Court may review the validity of both the current Will and the previous one during the same proceeding in order to expedite the process. While this may seem strange, it is in the interests of judicial economy that the current Will which is being disputed be reviewed by the Court at the same time as the previous Will.

Obviously, if the current Will is deemed valid, then in that event, the validity of the previous Will is irrelevant. On the other hand, if the current Will is deemed invalid it becomes extremely important whether the previous Will is valid. As such, it is important for a party to consider the possibility as to the distribution under both current Will and the previous Will in the context of a Will contest. That is because it is necessary for the parties to consider how the property may be distributed under either Will in order to be fully informed. Also, the parties should consider the possibility of intestacy, and the potential distributions under this scenario if all Wills are deemed invalid.

After a Will contest has been commenced, the Court will often recommend that the parties consider mediation in an attempt to resolve the matter without the need for additional litigation. Often, the parties are able to resolve the dispute through Mediation without the parties incurring costly additional expenses. If a case cannot be resolved through mediation however, the case will move forward through discovery, and thereafter, to Trial. Once an Estate litigation matter is scheduled for Trial, the parties should be aware that the Trial will not be heard before a jury, but rather, is decided by a Chancery Judge that hears probate matters. Once the Judge renders his/her decision, either side may make an application for fees to the Estate. Thereafter, the Estate will be administered in accordance with the Court’s decision.

Paul W. Norris is a Shareholder and a member of the Litigation Group of Stark & Stark, 993 Lenox Drive, Lawrenceville. www.stark-stark.com.

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