New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

Any interested party may file an Order to Show Cause and Verified Complaint to compel production of a purported Last Will and Testament or information as to its existence of whereabouts. Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-29):

The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts of any paper purported to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate.

Pursuant to the Rules Governing the Courts of the State of New Jersey, the Court may order any person possessing the Will, or who has knowledge of the Will’s existence or whereabouts, to appear before it and make discovery as to his or her possession or knowledge of the Will or, upon the return date of the Order to Show Cause, enter such Order and take such further proceedings as may be deemed appropriate under the circumstances.

Generally, an interested party must allege in the Verified Complaint that:

1. He or she believes that somebody has in his or her possession, or has knowledge of the existence of whereabouts of a paper writing purported to be the Will of the decedent;
2. That the Testator or Testatrix of the Will passed away a resident of the county where filed; and
3. That the individual has neglected or refused to file the Will with the Surrogate of the county.

Under New Jersey case law, the designated executor or executrix in possession of a Will has a duty to either probate the Will or renounce his or her office. It is also worth noting that certain improper conduct with respect to Wills may be a disorderly persons offense or a crime of the third degree in the State of New Jersey. Specifically, N.J.S.A. 2C:21-3 provides:

a. Fraudulent destruction, removal or concealment of recordable instruments. A person commits a crime of the third degree if, with purpose to deceive or injure anyone, he destroys, removes or conceals any will, deed, mortgage, security instrument or other writing for which the law provides public recording.
b. Offering a false instrument for filing. A person is guilty of a disorderly persons offense when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.

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)

http://timothyjlittlelaw.com/
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-compelling-production-of-a-will/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/

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)

New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

The validity of a purported Last Will and Testament may be challenged for many reasons, including that the testator or testatrix lacked the mental capacity to make the Will. Generally, for purposes of a Will contest, the contestant has the burden of proving that the testator or testatrix did not have the requisite mental capacity at the time the Will was executed.

Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-1), any person over the age of eighteen (18) years old, who is of sound mind, may make a Will. Generally, a testator or testatrix has the necessary capacity to make a Will if he or she:

1. understands the general nature of the business in which he or she is engaged and the particular distribution he or she is effecting;
2. recollects the property of which he or she means to dispose and the persons who naturally are the objects of his or her bounty; and
3. comprehends the interrelation of these facts.

As can be imagined, the analysis is very fact-sensitive, and will ordinarily require expert testimony. As indicated above, only a minimal degree of capacity is necessary to make a Will. Furthermore, a very low degree of intelligence suffices for testamentary capacity – pursuant to New Jersey case law, even if the testator or testatrix is childish, “feebleminded,” a “drunkard,” an addict, suffering from memory lapses, or even classified as insane, he or she may still have the necessary capacity to make a Will.

Although the validity of a Will may be challenged for a certain period of time after it has been admitted to probate (generally, four months), a properly filed caveat may prevent the executor or executrix from receiving letters testamentary. Depending on the circumstances of each particular case, it may be advantageous to prevent the probate of a doubtful Will by filing a caveat, rather than seeking to challenge the probate judgment after the Will has been admitted.

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, caveats, 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)

http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-lack-of-capacity-as-grounds-for-will-contest/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/