Timothy J. Little Law


Attorneys at Law


New Jersey Estate Administration & Litigation: Contesting the Validity of a Last Will and Testament

By: Justin M. Smigelsky, Esq.

One of the most recognizable areas of estate litigation is the “Will contest.” Generally, the validity of a purported Last Will and Testament may be challenged for any of the following reasons:

  1. Undue influence by way of mental, moral, or physical exertion;
  2. Noncompliance with the formalities of the “Will’s Act,” N.J.S.A. 3B:3-1, et seq.;
  3. Lack of testamentary capacity (must understand general nature of the transaction, and recollect the property being disposed of and the objects of his or her bounty);
  4. Fraud in the execution or fraud in the inducement;
  5. Forgery; and
  6. Mistake in the execution, mistake as to contents, or mistake in the inducement;

Only a party who might be injured or aggrieved by the admission of the Will to probate has standing to contest the Will’s validity. Generally, this includes a next-of-kin, a judgment creditor, or a beneficiary under an earlier Will executed by the testator. In order to have standing, the burden rests on the contestant to prove that he or she has been, or will be, injured by the probate of the purported Will.

While litigation is pending as to the validity of the Will, the parties will often contest who shall be designated to administer the estate in the interim. The Court has wide discretion in determining whether the proponent of the Will or the contestant / Caveator will administer the estate pendente lite, and may even appoint a neutral individual as temporary administrator.

Although the validity of a Will may be challenged by filing a “Caveat” prior to admitting the Will to probate, a contest to the validity of the Will may be made by Complaint after it has been admitted to probate (generally, if made within four months). If a Caveat is properly filed, it prevents the executor or executrix from receiving letters testamentary; if, on the other hand, an action is filed to set aside the Will after it has been admitted to probate, the executor or executrix would have been already permitted to undertake administration and, possibly, distribution. In sum, it is usually 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 and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, 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.  /  2016  /  All Rights Reserved

Leave a reply



Office Locations



Woodbridge, NJ


Chesterfield, NJ
Call Timothy J. Little, P.C. for Legal Advice
New Jersey Estate Administration & Litigation: Contesting the Validity of a Last Will and Testament

New Jersey Estate Administration & Litigation: Contesting the Validity of a Last Will and Testament

By: Justin M. Smigelsky, Esq.

One of the most recognizable areas of estate litigation is the “Will contest.” Generally, the validity of a purported Last Will and Testament may be challenged for any of the following reasons:

  1. Undue influence by way of mental, moral, or physical exertion;
  2. Noncompliance with the formalities of the “Will’s Act,” N.J.S.A. 3B:3-1, et seq.;
  3. Lack of testamentary capacity (must understand general nature of the transaction, and recollect the property being disposed of and the objects of his or her bounty);
  4. Fraud in the execution or fraud in the inducement;
  5. Forgery; and
  6. Mistake in the execution, mistake as to contents, or mistake in the inducement;

Only a party who might be injured or aggrieved by the admission of the Will to probate has standing to contest the Will’s validity. Generally, this includes a next-of-kin, a judgment creditor, or a beneficiary under an earlier Will executed by the testator. In order to have standing, the burden rests on the contestant to prove that he or she has been, or will be, injured by the probate of the purported Will.

While litigation is pending as to the validity of the Will, the parties will often contest who shall be designated to administer the estate in the interim. The Court has wide discretion in determining whether the proponent of the Will or the contestant / Caveator will administer the estate pendente lite, and may even appoint a neutral individual as temporary administrator.

Although the validity of a Will may be challenged by filing a “Caveat” prior to admitting the Will to probate, a contest to the validity of the Will may be made by Complaint after it has been admitted to probate (generally, if made within four months). If a Caveat is properly filed, it prevents the executor or executrix from receiving letters testamentary; if, on the other hand, an action is filed to set aside the Will after it has been admitted to probate, the executor or executrix would have been already permitted to undertake administration and, possibly, distribution. In sum, it is usually 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 and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, 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.  /  2016  /  All Rights Reserved

Leave a reply

Recent Blog Posts