(A) the person who signed the Will (Testator) was mentally incapacitated;



(B) the Testator was coerced or improperly influenced to sign the Will;

(C) the Will was subject of a fraud; and,

(D) the Will was not properly executed.

In this article, some of the most common causes of a Will contest are generally explored along with the prospects of recovering attorney fees where the integrity of a Will is questioned.

A. Undue Influence

Undue influence has been defined as any type of exertion, whether, physical, mental or moral that can prevent the Testator from following his/her free will. Haynes v. First Nat. State Bank, 87 N.J. 163, 176 (1981). Mere suggestions, persuasions or the exertion of some influence is not enough to invalidate a Will, however. Ordinarily, the person who seeks to attack a Will, will have the burden of proving undue influence. If, however, the Will benefits one who enjoyed a special or confidential relationship with the Testator, and there are suspicious circumstances surrounding the execution of the Will, the law will presume that an undue influence existed.

A confidential relationship can be found where there is some special trust between the Testator and a beneficiary under the Will and where the nature of that special relationship creates some type of reliance or dependency. At times a special or confidential relationship has been found to exist between a Testator and a son, a nephew, a healthcare provider, a neighbor, an attorney and an accountant. Notably, while a confidential relationship naturally exists between a husband and wife, the presumption of undue influence will not generally arise even when the Testator's children are disinherited. Once a special relationship has been determined the confidant must rebut the presumption by establishing that there was no deception; that no undue influence was used; that the Will was fair and voluntarily signed; and that it was well understood. Ordinarily, the burden of proof for issues of this type is a preponderance of the evidence. Where the suspected relationship is between an attorney and the Testator or other similarly sensitive relationship, the responsibility to prove these facts may be increased to "clear and convincing evidence" which is a more stringent standard of proof.

As to the "suspicious circumstances" component of an undue influence Will contest, the law concludes that evidence on this issue need be no more than "slight". Suspicious circumstances have been found where a beneficiary of the Will engaged his own attorney to prepare the Testator's Will and where a nursing home patient was removed from the facility by the beneficiary of a Will that was signed a few days later.

B. Testimonial Capacity In New Jersey

The test for determining whether a Testator has the mental capacity to effectively execute a Will is rather permissive. Indeed, the level of intelligence needed to execute a Will is less than that required to enter into a contract. The factor to be used to assess testamentary capacity is whether the Testator understood:

(1) the nature and extend of the property subject of the Will;

(2) the people who should receive ordinarily the benefit of his/her wealth;

(3) the meaningful effect of the Will;

(4) the relation of each of these factors to the other; and

(5) the manner in which the Testator's wealth is distributed by the Will.

Notably, the law presumes that all Testators are of sound and competent mind when a Will is executed. To overcome that presumption, the contestant must prove lack of mental capacity at the time the Will was executed, by clear and convincing evidence. In approaching issues relating to a Testator's mental capacity, it is important to know that, it is not enough to show that the Testator was addicted to drugs or alcohol so long as the Testator was not under the influence of a substance at the time of the execution of the Will. Nor, is it sufficient to show that the Testator was old or forgetful so long as, he/she had some capacity to manage his/her business affairs.

C. Fraud

A Will can be revoked because of someone's fraudulent conduct for a variety of reasons.

One of those reasons is where a Testator is beguiled into signing a document without knowing that it is a Will. Others involve situations where a beneficiary induces a Testator to execute a Will based on false facts (i.e. a suitor promises to marry the Testator if he/she is made a beneficiary under the Testator's Will, where the suitor has no intention of marrying the Testator).

In the context of a Will contest, fraud will not to be presumed. Moreover, if the Testator learns of the fraudulent conduct and does nothing to change the Will over an extended period of time, it may be said that the Testator reaffirmed the contents of the Will and, as a result, the Will is voided.

D. Litigation Expenses

Generally, each litigant is required to pay for his/her litigation expense, including, attorney fees. There are certain exceptions, however. One relates to cases where a Will is subject of a contest in a probate action. Under the instructions of this rule, a trial judge may award counsel fees and other costs even if the person who filed the action is unsuccessful, provided there was a reasonable basis to attack the Will.

E. Conclusion

It is a very difficult task to determine whether a Will should be attached. May times, the close personal relationship between the parties involved with the problem that creates a level of passion that overwhelms prudent decision making.

If you believe that a Will should be challenged because it is defective, for one reason or another, you should hire a seasoned attorney, who has good experiences in this area of law. Do not delay with your decision to engage an experiences attorney because the law allows only a narrow window of time during which a Will contest may be filed.

Copyright (c) 2009 Frank Luciano