How do I contest a will?

A will contest is a legal action challenging the validity of a will.  There are many reasons you may wish to challenge the validity of a will.  Maybe you believe that the person who signed the will was under “undue influence” when he/she signed it or possibly the signature is a forgery.  There are many cases of will contests involving the rich and famous such as the heir to the the Johnson family estate or even Anna Nicole Smith’s challenge to her late-husband’s estate.  Will contests often occur when children of the deceased are treated unequally under the will, for example, if the deceased has several children but the will names one child as the executor and sole beneficiary of the will. Will contests also may occur when the deceased makes a specific gift to a non-family member instead of blood relatives, or to the spouse from a second marriage at the expense of children from a prior marriage.

For a will to take effect it must be admitted into probate. The executor who is named in the purported will initiates the probate process by presenting the original will together with the original death certificate to the Surrogate.  A will contest can be initiated by filing a document known as a “caveat” with the Surrogate before a purported will has been admitted into probate. The probate of a will cannot occur until the eleventh day after the date of death of the testator. This ten-day period allows for the filing of a caveat with the Surrogate of the County in which the decedent was domiciled at the time of his or her death.

Persons with standing to challenge a will include those who are named on the face of the will and those who would inherit from the testator if the will was to be declared invalid. If a caveat has been filed with the Surrogate in a timely manner, then the proponent of the contested will cannot probate the will simply by presenting it to the Surrogate with the decedent’s death certificate.

Even if it is too late to file a caveat, it is not necessarily too late to hire an attorney to file a will contest. A will contest also can be commenced after a will has been admitted into probate. In that case, the estate attorney for the will contestant must file a lawsuit seeking to set aside the probate of the purported will. New Jersey has strict time limits for commencing such an action.  Contesting a will is litigation, and it is recommended that you retain the advice of an attorney to proceed with the will contest.