Q: What are typical reasons why someone might contest a will in New Jersey?
The most common grounds are either lack of testamentary capacity at the time the will was executed or a claim of undue influence on the testator by people who surrounded the person who created the will (the “testator”) at the time the will was executed, or combination of those things.
Another reason is that the will had been drafted by an attorney who has a conflict of interest. There is a significant amount of estate litigation and will contests which spring up in the instance that an attorney who drafted the will had a prior loyalty or attorney-client relationship with the person who ended up receiving the benefit of that will.
In the above scenarios, the law describes it as constituting “suspicious circumstances” and puts the burden of proof on the party defending the will to prove that the testator was not the subject of undue influence or lacked testamentary capacity. Lawyers have to be careful in these circumstances.
Lack of testamentary capacity
When someone is challenging a will based on lack of testamentary capacity, that means that the people challenging the will are saying, for example, when their father left everything to his girlfriend, he was suffering from Alzheimer’s, and if he had his wits about him, he never would have excluded us, the natural objects of his bounty and his blood. He would never exclude us from his estate. We cared for him all these years and the only reason he signed a will leaving everything to the girlfriend is because he didn’t know what he was doing at that point.
And that’s where you get into litigation, requiring the testimony of doctors and treating physicians as to whether or not he had testamentary capacity at the time the will was executed.
The other common reason for a will contest is undue influence where, for example, the testator is living with the new girlfriend, and suddenly she’s taking him to her lawyer to have him sign a new will, leaving everything to her. Why would he do it? Maybe because she cooked for him, she cleaned the house, she took care of him and he wanted to express his gratitude. Or perhaps she intimidated him. She was bossing him around and he had no real free will in that situation, and was intimidated into signing the will.