By: Justin M. Smigelsky, Esq.
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:
- understands the general nature of the business in which he or she is engaged and the particular distribution he or she is effecting;
- 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
- 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. represents 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 Areas: 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)