Objecting to the Probate of a Last Will

Objecting to the Probate of a Last Will Starts by Filing a Caveat With the County Surrogate or the Superior Court

A will is a document that directs how a person’s property is to be distributed upon his/her death. The person creating the will is generally called a testator. The person responsible for administering the terms of the will is called the executor or if there is no Last Will, the estate administrator.  A will creates a fiduciary relationship between the executor and the beneficiaries named in the will.  A beneficiary is a person or organization entitled to receive something of value under the Last Will.

“Probate” is a process where the Will is declared legally valid by the County Surrogate.  Your County Surrogate has the authority to approve the Last Will, a lawful and controlling disposition of the decedent’s estate. When there is no Will, the Surrogate issues Certificates of Administration to a person who is appointed by the probate court to handle the administration of the person’s estate.

An application to probate a Will and to approve the qualification of the Executor named in the Will may be made ten (10) days following the death of an individual and must be filed by the Surrogate’s Office of the County where probate is proposed. This 10-day delay between death and probate is designed to permit enough time for any person with an interest in the estate to file an objection or “caveat” to the admission of the Will. This objection to the probate of a will generally means the authenticity or validity of the Will is being challenged in a “Will Contest”.

If a person dies owning (any) property (i.e., home, real estate, bank accounts, annuities, CD’s, savings accounts, IRA’s, etc.) that, if alive, would require a signature to a document (as an example, a check, title to a car, deed to real estate, stock certificate, etc.) and to liquidate, transfer ownership or otherwise disposed of such property, then probate is required in New Jersey. It is at this stage of probate that the executor becomes highly involved.

When the Will is approved for probate, the Surrogate will issue “Certificates of Executorship” to the Executor which will enable him/her to act with the same power as the deceased over his or her property (i.e., cash checks, withdraw money from bank accounts, transfer property and real estate, etc.).

If there is no Will, the Surrogate will issue a Certificate(s) of Administration to the appointed administrator to act on behalf of the estate and beneficiaries entitled to an inheritance under New Jersey laws.  The Certificate(s) of Administration are the legal equal to Certificates of Executorship granted to the named Executor under a Last Will.

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I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.

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The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.

Keep up the good work Fred and thanks again.
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Is a “No Contest” Clause in a Last Will Enforceable in New Jersey

Many clients want to avoid challenges to their Last Will and Trust.  They are generally concerned about some family member or other predator who is “all about the money”.  They’re thinking their Will should include a no-contest clause to protect their estate and named beneficiaries from greedy or unstable siblings, other children, etc.  Also known as an in terrorem clause, this clause specifies that any interested party who contests an estate plan automatically gets nothing. This type of clause will either be enforced or found unenforceable whether included in a Last Will or a Trust.

Unfortunately (or fortunately, depending upon your position) while a no-contest clause can be enforced, generally the courts do not uphold them in New Jersey. Even when a no-contest clause is valid, it does not apply to someone who is disinherited from an inheritance; it applies only to beneficiaries who challenge the will because they don’t like what it says.

One suggestion to reduce the threat of a challenge to a Last Will is to create a trust rather than rely on a will as a private document.  A trust does not need to be filed with the Probate Court. Because it is not a public record and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning.  He/she deals with these kinds of issues/problems all the time and can suggest strategies to minimize the chances of troublemakers creating problems, or being successful in a will contest if they act further.

Standing to Contest a Will

A party contesting a Will must have the standing to challenge the Will. Standing is a legal term. To have legal standing, a person must be injured, or “aggrieved” by the probate of the Will he or she is contesting in the court. Simply, this means that you are making an economic claim for damages because of some defect in the Will or that something was done to the decedent by others that is claimed to be unlawful.

Watch This Video Introduction to New Jersey Probate Laws

Procedural Issues in a Will Contest Case

A Will contest can be initiated in one of two ways. First, a contestant can file a “caveat” with the County surrogate. A “caveat” is a formal notice which prevents the approval and legal admission of a proposed Will to probate and the appointment of a personal representative to the estate, who is known as the executor or executrix. To be legally effective, a caveat must be filed with the surrogate in the county in which the decedent was domiciled within 10 days after the decedent’s death. However, a caveat can be filed at any time after death but prior to the filing of the Will proposed for probate.

If a caveat is filed prior to the entry of a judgment of probate, the Surrogate’s office loses jurisdiction over the will and may not act. If a caveat is not filed before the Will has been admitted to probate, the contestant must file a Verified Complaint and Order to Show Cause with the Superior Court seeking to set aside the probate of the Will. The verified complaint and Order to Show Cause must be filed within four months after probate by a New Jersey resident, or if the aggrieved person resides outside of New Jersey within six months after probate of the Will. These deadlines may be extended by the Court upon good cause, the absence of prejudice, and the interests of justice.

Filing a Caveat Against a Last Will:  A Video Introduction

Defending Estates Against a Last Will or Trust Challenge

No matter what anyone else may tell you, all of us have the right to disinherit anyone we want from our will, the sole exception being a spouse without a pre-nuptial agreement (but even then they can only claim an “elective share”.

Often the person omitted from the estate claims that there is something wrong with the Last Will, that its creator was too old, too sick, too vulnerable to the undue influence of another and/or they were tricked into making the will. The reasons go on and on. Then they look for “legal technicalities” to undo the will. A forged or suspicious signature, absence of two (2) attending witnesses, handwritten notes on the original document. 

Oftentimes, their real reason for challenging the will is the fact they are not getting what they want (or anything), and they will make claims in hopes of getting a settlement out of the estate. It’s a strategy I see often used.

What happens is that the attorney takes the estate case on a contingency basis, meaning they get a share (typically one-third) of whatever the claimant collects. They never plan to go to trial. An executor will feel threatened by the challenge and offer a settlement (small or large) just to make the adversary go away. Depending upon the merits of the case, and as your advocate, we will either engage in a dialogue with the objector or fight the claims and take them to trial. When the fees start to rise and they encounter real opposition, many claimants lose their combativeness and either give up the fight or settle for a much more reasonable amount.

If the objections are not withdrawn, we may file a Motion to Dismiss, which has the effect of throwing the case out of court without a trial because there is not enough evidence to successfully win at trial. We may recommend this course of action if we think it’s in the best interest of the estate so you can close the estate and distribute assets to their rightful beneficiaries with a small settlement or no settlement at all.  We will explain any recommendation of ours and lay it out to you in plain terms.

Defending Pre-Death Gifts

We all have the right to make gifts during our lifetime. Yet those gifts can often be challenged after the person who made them dies.

The principal grounds for challenging a gift are; fraud, duress, lack of capacity, forgery, and undue influence. I discuss these grounds extensively on many of the pages found on this website. Look at the Table of Contents.

Claimants often allege the decedent “did not really intend to make the gift” and that they were taken advantage of. While the burden is on the claimant(s) to prove their case, we’ll help you disprove the claimants’ arguments by demonstrating that the donor made the gift(s) of their own free will. Although a few of the stronger cases can settle, we have the capacity to successfully defend against most challenges to pre-death transfers of assets.

Defend Beneficiary Designations

Just with a Last Will and Trust, individuals are entitled to name whomever they want as beneficiaries of their assets, including stock and bank accounts, CD’s, annuities, and real estate, for example. By operation of law, the assets pass directly to the beneficiary, without going through probate and the Surrogate’s Court. Beneficiary designations are often challenged by those not named as a beneficiary or who receive a lesser share of the probate estate than expected. Often the claim is that the owner who named beneficiaries was deceived and/or misled prior to signing the beneficiary designation form, or that they did not know what they were signing. From my experience, these cases can be the most challenging because many times the allegations are true but the law requires that these claims be proven by credible and substantial evidence.

We can posture the case to show the court that the person who created the beneficiary designation did so of their own free will, knowingly, purposefully, and without threats and/or undue influence. We closely analyze claims of mental incapacity, fraud, and duress, to uphold the integrity of the decisions to name a beneficiary outside of probate through the lawful means of beneficiary designations.

Contesting a Will Before the Death of Its Maker

An intriguing issue has evolved as to whether a Will can be contested before the maker of the will has died. Traditionally, the Courts in New Jersey have not permitted pre-death Will contest and litigation, reasoning that a Will contest is premature until a person dies. The thought is that because the testator (the person who makes and signs the will) may revise the Will before death, the Court does not want to waste time and resources on an issue that may very well never come to pass. In reality, such contests are being permitted more regularly but are still disguised by pleadings and captions using another name, i.e., guardianship, conservatorship, fraud, etc.

Do you feel that a Will Contest should be filed?

Are there problems surrounding the validity of a Will?

If you are the executor of an estate or trustee of a NJ trust under attack by beneficiaries or omitted beneficiaries, or if you are a beneficiary or omitted beneficiary of a deceased family member and believe that the Last Will & Testament or trust was changed because of undue influence, fraud, the deceit of another (or others) or the lack of competency at the time of its signature, then contact Fredrick P. Niemann, Esq. today, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

 

 

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest Probate Litigation Attorney