Probate Litigation

Sometimes a family has concerns about the probate process or the circumstances surrounding the creation of a will or trust. Often, the disposition of an estate is an emotionally heated matter that requires legal knowledge, compassion, and strategic thinking. The representation of an estate planning attorney may be critical in helping you protect your rights and further your interests. At Lindabury, McCormick, Estabrook & Cooper, our New Jersey probate litigation lawyers can guide you through these sensitive situations.

Generally, the probate court gives someone authority to distribute a decedent's property and assets either in accordance with the terms of a person’s will, or in instances where there is no will, in accordance with the New Jersey laws related to intestacy . Since so much is at stake, disputes may arise during this process. Some contested matters that fall within the umbrella of probate litigation include will contests, trust modification and trust reformation suits, trust construction suits, trust termination suits, guardianship contests, and breach of fiduciary duty actions.

For example, a will contest is a challenge to the validity of a will. In order to bring a will contest, you need to have "standing," or the right to challenge it. Anyone named on the face of a will has standing to bring a will contest. Anyone who would have had an interest in a testator's estate if no will existed also has standing to challenge a will. Anyone named in a prior will similarly have standing to challenge a new will if that new will eliminates or reduces that person's share of the decedent’s estate. Usually, the person filing the will contest bears the burden of proof, but in some cases, there is a presumption in favor of that person.

Some grounds to bring a will contest include undue influence, insufficient capacity to execute a will, failure to follow the formal requirements necessary to create a will, deception, fraud, power of attorney abuse, or a conflict of interest.

New Jersey law presumes that the drafter of the will, also known as the testator, was competent when he or she executed a will. However, there may be some suspicious circumstances surrounding the signing of the will that may suggest a will was tainted by undue influence. Undue influence is defined as coercion or domination by a person, whether moral, physical, or mental, that destroys a testator's free agency by influencing the testator such that he or she is prevented from following what his or her own mind dictates.

Undue influence, if proven, is a basis to overturn a will. The burden of proving undue influence lies with whoever brings the will contest except when a will benefits someone who stood in a confidential relationship to the testator, and suspicious circumstances exist. A confidential relationship exists when a testator's weakness makes him or her dependent on the party exerting the influence, or when the parties have a relationship in which there is actual reliance or there naturally would be reliance. If both a confidential relationship and suspicious circumstances are shown to exist, then the burden of proof will shift from the person challenging the will to the person who was in the confidential relationship to prove that there was no undue influence. This shifting of the burden of proof is a powerful tool.

Another basis for a will contest exists when someone did not have the capacity to execute a will because of mental incapacity, illness, or extreme age. In New Jersey, the test of whether someone has testamentary capacity is whether the testator is able to understand the property of which he or she is disposing, the testator’s relationship to the people who would usually inherit, the meaning of what the testator is doing, the relationship of these factors, and the distribution authorized by the will. In order to overcome the presumption in favor of testamentary capacity in a will contest, you will need to present clear and convincing evidence of incapacity to the Court. This is a high burden to overcome and one which requires a meticulous investigation of all potential evidence from any possible source.

The loss of a loved one can be an emotionally devastating event, which can be further compounded when confronted with legal issues surrounding the disposition of a loved one’s estate. After a loved one dies, family members may be surprised by the contents of his or her will or trust, or be disturbed by who was appointed to manage their loved one’s affairs. Maneuvering through the legal system in order to insure that your loved one’s true wishes are followed can be a harrowing process. Having an experienced team of attorney to assist you can be invaluable in helping you get peace of mind and a fair result. The New Jersey probate litigation attorneys at Lindabury, McCormick, Estabrook & Cooper provide knowledgeable representation, guiding people through the process of challenging instruments that dispose of their loved one's property or affairs in a way that they believe do not reflect his or her true intentions. Call us at 908-233-6800 or contact us via our online form to set up a consultation. We also can assist people who need an elder law attorney or representation in a wide range of other legal matters.