When you write a will as part of your estate plan, you want to ensure the terms are legally valid and strong enough to withstand any challenges. A family member or loved one challenging the terms of a will often causes unnecessary grief and stress for the whole family.
To help decrease the chance of your will being contested, it is important to know some of the common reasons wills are challenged.
Lack of capacity
Lack of capacity is one of the most common reasons wills are challenged. New Jersey law requires you to have the capacity to execute a valid will.
This means you must be 18 years old and capable of knowing the type of property you own, who your heirs and beneficiaries are and how you want your property to be distributed to these heirs and beneficiaries.
The good news is that it is not up to you to prove your capacity when drafting your will. The law assumes that if you are over 18 years old you possess the testamentary capacity to draft and execute your will.
When someone challenges a will based on lack of capacity, it is up to them to prove that the person who drafted the will lacked the legal capacity to do so. They must provide clear and convincing evidence to prove this.
This is usually a high bar to meet. Proving lack of capacity often requires testimony by neutral witnesses, such as doctors, who were familiar with your mental capacity at the time you drafted your will.
Many times, the individual challenging capacity is simply unhappy that they were left out of the will or did not receive their fair share and this alone is evidence that you were not in your right mind.
Undue influence
Undue influence is another major reason for a will challenge. This happens when the individual challenging the will believes that someone else forced or coerced you into writing your will a certain way.
To succeed in a will challenge based on undue influence, the challenger must show that you were physically or mentally coerced by someone to the point that your free will was overridden.
Additionally, the challenger must typically also show that you were in a close relationship with the person who is responsible for the undue influence. This, combined with evidence of coercion, could potentially invalidate a will for undue influence, although the burden is still high.
Mistake in execution
A mistake in the will’s execution is another common reason for a challenge. In addition to the requirements for capacity, New Jersey law contains other requirements for executing a valid will.
For example, the will must be signed in the presence of two adult witnesses. These witnesses should be disinterested, meaning they will not gain anything under the terms of the will. If there is evidence there was only one witness, or one witness was a major beneficiary in the will, this could be the basis for a challenge.
