At the law firm of Himelman & Himelman, we have extensive knowledge and experience when it comes to contesting a will. Our attorneys understand that the process can be confusing and lead to frustration and hurt feelings between individuals. Understanding your rights and the correct course of action will make any legal action you take much smoother.
The Process of Contesting a Will
When it comes to contesting a will in New Jersey, there are several things one should know before proceeding with any legal action. Only certain people can contest a will in New Jersey and those who can have what is called ‘standing’. People are considered to have standing if they have a direct interest in the legal action and can show that they may sustain injury or harm as a result of the action. This will usually be a spouse, a child, a stepchild, or a relative who is closest in relationship to the deceased person.
So who generally has standing in these situations?
- The first group would be those who had an interest in the estate if no will was drawn up. For example, children would be entitled to a share of the inheritance of the deceased. If a will exists and the child is not identified or named as a beneficiary, they still may have some standing in contesting a will.
- If the will has been changed, anyone named in an old will have standing to challenge the current will.
Acceptable Basis for Contesting a Will
When it comes to contesting a will there are essentially two basis for which a person or group can fight the validity of the will.
- The first basis occurs when the person contesting a will alleges that the decedent did not have the Testamentary Capacity to have signed the will at the time it was written. Essentially this means the decedent was not of sound mind when they executed the will. This is a difficult basis to fight for as it is very hard to prove they were not of sound mind without a large amount of medical evidence.
- The second basis for contest occurs when the decedent’s will was allegedly created with Undue Influence. This will require the person challenging the will to prove the decedent was unduly influenced by another person to a degree where the will reflects the influencers wishes and not the decedent’s wishes.
When Can I Contest a Will?
If you are considering contesting a will, the first step is to block the will from being probated. A will cannot be probated until 10 days after the death of the decedent. This guarantees that anyone with standing has enough time to file a contest to the will. Contests are usually filed as a caveat to the will and will halt the probate process. Once the caveat is filed with the Surrogate’s Court of the County where the decedent lived, the contest will be moved to Superior Court. If you think you have a sufficient basis to contest the will, you must act quickly in order to file the caveat before the will is probated.
Contact Himelman & Himelman About Contesting a Will
If you would like to contest a will and have any questions about the process, contact us today to set up a free consultation.