When a friend or loved one passes away, those who remain are forced to struggle with the loss and must learn to cope with the absence of the deceased. As difficult as coming to terms with the death of someone we care about is, things can get even worse if we discover that our hopes or expectations regarding that person’s estate haven’t been provided for in his or her will. If this has recently happened to you, you should seriously consider hiring a will contest lawyer in NJ.
Who exactly is a will contest lawyer in NJ? Simply put, he or she is an attorney experienced in handling trusts and estates issues, one who is competent in dealing with probate matters and who can represent you through the entire process of challenging a will (Please be aware a will can only be contested after the will-maker has died). And what exactly can you expect from that process?
Before we answer that question, it might be helpful to know what you can expect from a will contest lawyer in NJ. You should also know what he or she will expect from you. Either way, you will learn a great deal about whether to challenge a will from the questions a skilled New Jersey will contest lawyer will ask you before taking on your case, questions which will likely include the following:
How are you related to the decedent?
In order to contest a will, the court will require you to establish what is called “standing”. You do not have standing if you have no connection to the person who died (otherwise known as “decedent” or “testator” if male and “testatrix” if female). This connection must be real, not perceived.
Why do you think you were going to be named in the will?
The court will want to know upon what basis you believe you are entitled to any estate asset(s). If you can demonstrate the closeness of your relationship with the decedent, for example, or have some evidence that establishes that you were promised a gift or gifts in the will, it can support your case.
For what reason do you feel the will should be declared invalid?
There are three grounds upon which a will can be contested:
- The testator/testatrix lacked what is called “testamentary capacity” at the time the will was executed. In other words, the will-maker was not of “sound mind,” incapable of fully understanding what he or she was doing or unable to identify beneficiaries or the specific property to be disposed of by the will.
- The will does not meet the formalities required by New Jersey law. For example, perhaps the testator was not yet 18 or the testatrix signed the will before only one witness rather than two or one of the witnesses is a beneficiary of the will.
- If the will does not accurately reflect the will of the decedent because of mistake, fraud or duress (such as when someone has been unduly influenced by another who stands to benefit from the will or represents someone else who does).
What did you hope to inherit from the decedent?
Be specific about what that is and why. Again, if you have some evidence that can establish you were promised something specific, any will contest lawyer in NJ you speak with will want to see it. Be careful, however, because not all estate assets are distributed by will and you may have been otherwise provided for by, for example, being named as a beneficiary in a life insurance policy. Always try to ascertain whether this applies to you.
What do you want to receive from the estate?
This may be different than what you hope for. You may have a specific gift or amount of money in mind and want to contest the will to ensure that you receive it, regardless of what else may be available or already bequeathed to you.
Are you willing to risk whatever inheritance you may be entitled to knowing that you might possibly end up with nothing?
Many wills contain a “No Contest” clause which generally states that any beneficiary who challenges a will or any provision thereof will be disinherited completely. If the will is declared invalid, then obviously the No Contest clause also becomes invalid. However, if the clause is deemed valid and you were a named beneficiary in the will, your bequest may be revoked. Of course, if you were completely written out of the will, the No Contest clause has no effect on you.
What information do you have regarding the decedent, the will or the property in the estate that may not be common knowledge?
In a will contest case, whatever information you have that can either support your position or, in the alternative, weaken the merits of someone else’s position is relevant and may end up being the difference between winning and losing.
Are you aware of any other potential beneficiaries who may be contesting the will?
If so, are they contesting the validity as a whole or only certain provisions? This can have a significant impact on your desired outcome. For example, if you are a named beneficiary and are simply attempting to increase your inheritance under the will, you may be left out in the cold if the will is deemed invalid because of the actions of another party with standing.
If you decide that you want to proceed with a will contest lawyer in NJ, you should know that the process is not necessarily a quick one. In fact, it can take months and sometimes even years, depending on the number of parties and complexity of the overall case.
Steps include the gathering of documents and other information that might constitute evidence relevant to the case, discovery (both of documents and via depositions) and ultimately a trial. If the case is particularly complicated, it can become very expensive. Again, this is why checking on your motives is so important: Unless money is no object, starting a will contest solely on principle is not a wise decision.
If, after you’ve assessed all the factors, you want to hire a will contest lawyer in NJ, you can expect the following:
- Your lawyer will file a challenge with the probate court of the county in which probate has been filed.
- All parties can (and likely will) conduct examinations for discovery (such as depositions) and documentary discovery.
- Court hearings to determine whether the will or your challenge is valid.
- Parties contesting the will and the estate itself are all provided the opportunity to present evidence and take whatever other action may be necessary to represent their interests.
- If the will is held by the court to be invalid, the testator/testatrix will be deemed to have died intestate (without a will) and the estate will be distributed according to state intestacy laws. If your relationship to the deceased does not entitle you to an inheritance via intestacy, your decision to engage a will contest lawyer in NJ will prove to have been a very unwise, costly decision.