By Fredrick P. Niemann, Esq. of Hanlon Niemann, Freehold, New Jersey, a NJ Probate Litigation Attorney
In New Jersey, the most frequent grounds for contesting a will or a trust in New Jersey are:
- Lack of Mental Capacity, and
- Undue Influence.
It is generally recognized by will contest lawyers that there are (2) two levels of mental capacity required by a person at the time of his/her execution of estate planning documents, such as a will, trust, power of attorney for property and for life care planning, and a living will, health care directive. They are:
- Testamentary capacity, and
- Contractual capacity.
Mental Capacity is the term used to determine the degree to which an individual has the testamentary and contractual mental ability to understand the nature and effect of what he or she is signing. NJ law decides whether an individual has sufficient capacity to knowingly engage in at the action that is being evaluated. Mental Capacity is not an all or nothing concept; it can vary according to time of day, the task presented, and life’s stressors.
Here’s an example: a person may be determined incompetent in a guardianship proceeding because he is unable to manage his affairs, but he still may be competent to provide witness testimony if he remains able to observe, recollect, and communicate. It seems inconsistent on its face, but it’s true. Mental capacity is not a one-size fits all encompassing definition.
Contact me personally today to discuss your New Jersey Will contest or Trust dispute case. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.