Thursday, March 9, 2017

New Jersey Probate & Estate Litigation: Contesting a Will for Improper Form or Execution

In determining whether grounds exist to challenge the validity of a Last Will and Testament, an analysis must be made as to whether the purported Will was prepared and executed in conformance with the New Jersey Wills Act. Pursuant to N.J.S.A. 3B:3-2, a Will must be:
  1. In writing;
  2. Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
  3. Signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the Will or the testator’s acknowledgment of that signature or acknowledgment of the Will.
In the alternative, pursuant to N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, a noncompliant document may suffice if the signature and material portions of the document are in the testator’s handwriting or if the proponent of the document can establish that the decedent intended the document to constitute his or her Will. However, as stated in In the Matter of Will of Ranney, 124 N.J. 1 (1991), the execution of a Last Will and Testament remains a “solemn event,” and a careful practitioner must observe the formalities surrounding the execution of Wills.

In Ranney, the New Jersey Supreme Court highlighted the significance of the statutory formalities for the preparation and execution of Wills and commented that:
The primary purpose of those formalities is to ensure that the document reflects the uncoerced intent of the testator. Requirements that the will be in writing and signed by the testator also serve an evidentiary function by providing courts with reliable evidence of the terms of the will and of the testamentary intent. Additionally, attestation requirements prevent fraud and undue influence. Further, the formalities perform a “channeling function” by requiring a certain degree of uniformity in the organization, language, and content of wills. Finally, the ceremony serves as a ritual that impresses the testator with the seriousness of the occasion.
Although the doctrine of substantial compliance may permit a defect in formality to be cured in certain instances, failure to carefully comply with the statutory requirements for execution of a Will may result in a Will contest or challenge.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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