By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Will Contest and Probate Dispute Attorney
Procedural Issues; Standing to Contest a Last Will or an Estate
A party contesting a will must have standing to challenge the will. Generally, a contestant must be injured, or “aggrieved,” by the probate of the will he or she contests. R. 4:85-1. Someone who feels aggrieved economically has to have a direct interest in seeking to block the probate of a Last Will – (here’s an example, she or he would receive a greater share of the decedent’s assets if the will were not probated). The burden of proof is on the contestant to prove he or she has been economically injured.
Here’s an interesting point of law, an executor under a prior will is not considered an aggrieved party and thus does not have standing to challenge a later will because he or she has been denied the status of executor or executrix.
What About Challenging a Will Because of its Noncompliance of the Legal Document with the Formalities of the Law
In evaluating a potential will contest, the initial focus of the court is on whether the purported will meets the statutory requirements as to form and execution.
N.J.S.A. § 3B:3-1 and -2 set forth the basic requirements for a valid will. N.J.S.A. § 3B:3-1 states that “any individual 18 or more years of age that is of sound mind may make a will.
N.J.S.A. § 3B:3-2(a)(1) and (2) requires that a will be in writing and “signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction.” In addition N.J.S.A. § 3B:3-2(a)(3) mandates that the will be “signed by at least two individuals, each of whom sign the document within a reasonable time after each witnesses either the (1)signing of the will as described in paragraph (2) or the testator’s acknowledgement of that signature or acknowledgement of the will.” Therefore, a person signing for the testator must do so not only at the testator’s direction, but also “in the testator’s conscious presence.”
The testator’s “signature” may consist of a mark, cross, initial’s, or even an assumed or wrong name, as long as the testator adopted it as his signature.
As for the witness, it is noteworthy that N.J.S.A. § 3B:3-2(a) (3) require that the two witnesses must sign within a “reasonable time” after each witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgement of the will. It remains open for debate how the “reasonable time” period is measured.
Doctrine of Substantial Compliance When a Last Will Appears to be Defective
Courts have invoked the doctrine of substantial compliance in certain circumstances where all formalities required under the law of Last Wills have not been met. So long as the document reflects the testator’s intent, a technical defect in the formal execution of the document will not invalidate it. Here’s an example:
A writing may be incorporated by reference into a will or codicil if: 1) the writing is in existence at the time of the will; 2) the language of the will shows the testator’s intent to incorporate the document; 3) the will describes the writing sufficiently enough for identification of the document. N.J.S.A. § 3B:3-10. Along this line, N.J.S.A. § 3B:3-11 allows for disposition of personal property by a separate writing to which the will refers.
Revocation of a Last Will
The validity of a will may also be challenge on the grounds that the will was revoked by its creator.
A testator can revoke a will or any part thereof by taking certain actions.
A testator can execute a subsequent will which revokes a prior will, either expressly or by inconsistency. N.J.S.A. § 3B:3-13(a).
In addition, a testator may revoke a will by performing a revocatory act upon the will. Such acts include burning, tearing, canceling, obliterating, or destroying the document or any part of it, with the intent and for the purpose of revoking the will. N.J.S.A. § 3B:3-13(b). These acts may be performed by the testator or by another person in his conscious presence and by his direction. The overriding concern is whether the testator intended the revocation by the act at issue.
In a related context, if only a copy of the will can be located after the testator’s death, a presumption of revocation usually arises. Effective September 13, 2005, New Jersey established an optional will registry system. N.J.S.A. § 52: 14B-1 provides that a person making a will, or that person’s attorney, may register the name and date of the person making the will and the will’s location.
To discuss your NJ Probate Estate Litigation and/or Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.