Creating a will is a good first step in establishing an estate plan, provided that it has been prepared and executed according to the applicable trusts and estate laws. Regardless of how well-conceived a will may be, however, disputes among the heirs may lead to a will contest — a legal proceeding in which the validity of the will is challenged. This is why it is critically important to consult a trustworthy estate planning attorney when you are preparing a will.
At E. A. Goodman Law, LLC, we have extensive experience drawing up wills and other essential estate planning documents for clients in Morristown and throughout the state of New Jersey. Our processes are designed to make sure that your will can prevent or withstand a legal challenge. At the same time, we represent executors and beneficiaries in the event that a will contest cannot be avoided.
What are the legal grounds for contesting a will?
To have standing for contesting a will, a party must have a legitimate interest in the estate — i.e. must be an heir, beneficiary, or a party who stands to inherit. A will cannot be challenged merely because one of the parties is not satisfied with the terms, however. Generally, the legitimate reasons for contesting a will include:
- Improper execution — There are certain formalities that must be followed in order for a will to be considered validly executed. In New Jersey, a will must be in writing, signed by the person making it (the “testator”) and by two individuals who witnessed the testator (1) sign the will or (2) acknowledge his or her signature on the will. If these formalities are not strictly followed, the will may be found to be improperly executed.
- Lack of testamentary capacity — The testator must have the mental capacity and be of sound mind at the time the will is executed, modified or revoked. In other words, the testator must have known what property he or she owned and understood the effect of executing the will. Although these relatively low standards, claims that a decedent lacked testamentary capacity when the will was executed are common.
- Undue influence — A will may be considered invalid if the deceased was coerced into executing the document, usually by one of the beneficiaries.
- Fraud — A fraudulent will is one that the testator was tricked into signing. As an example, the testator may be presented with another legal document and told that it is a power of attorney. By signing the document, the will was procured by fraud, which is often associated with testamentary capacity.
In addition to the will being contested, the competence or the capacity of the executor may also be challenged. Moreover, an executor is considered a fiduciary and can be held liable for mistakes or misconduct. In any event, if a will contest is successful, it will be declared invalid by the court. This means that the assets will be distributed either according to the terms of a prior will or, if no such will exists, to the intestacy rules of New Jersey.
How to Prevent Contesting A Will
There are a number of steps you can take to prevent a will contest.
A common estate planning mistake that many people make is to procrastinate, and then have a will drawn up when their physical or mental health is declining. It is critically important to prepare a will when you are of sound mind and body since lack of testamentary capacity is one of the leading reasons for a will contest.
Consider a No Contest Clause
In New Jersey it is possible to include a no-contest clause in a will, also referred to as “in terrorem clause,” which can prevent a beneficiary from challenging the distribution plan. The clause basically states that if a beneficiary challenges the will, he or she will not receive anything. It is important to note that a no contest clause is unenforceable if there is probable cause to challenge the validity of the will.
Create a Trust-based Estate Plan
Because a will is a public document that is filed in probate court, it is vulnerable to disputes that may lead to a will contest. One way to avoid this is to create a revocable living trust. In so doing, you transfer ownership of your property to the trust, and upon your death, the trust does not have to go through probate; however, a trust must go through a trust administration phase to honor and carry out the terms of the trust.
Be Careful in Planning Your Will
To avoid a claim of undue influence, you should work with your attorney privately when drawing up your will, and not include the beneficiaries in your discussions about the estate plan. Once your will is in place, however, you should inform your loved ones of your decisions and the reasons behind them to avoid misunderstandings and minimize the risk of disputes.
Keep Your Estate Plan Updated
Creating a will is not a “one and done” situation — your estate plan should be reviewed periodically to address changes to your personal or family situation, such as wealth accumulation, having children, divorce, or remarriage.
Contact Our Morristown Contesting A Will Attorney
Given the financial and emotional costs a will contest may bring, we believe it is best for the parties to reach a negotiated settlement. At the same time, we have the skills and experience to litigate any matter. Whether you need assistance preparing a will or have questions about the validity of a loved one’s will, contact E.A. Goodman law to discuss your situation. When you become our client, you can rest easy, knowing that we will protect your interests.