By: Justin M. Smigelsky, Esq.
The validity of a purported Last Will and Testament may be challenged for many reasons including undue influence. Undue influence is defined as mental, moral, or physical exertion resulting in the destruction of the free agency of the testator. Despite the popular misconception, undue influence may be accomplished by either violent or peaceful means, including truthful statements or moral or psychological pressure on the testator.
Generally, the caveator or contestant of a Last Will and Testament has the burden of proving that a testator has been subjected to undue influence; however, a presumption of undue influence is raised where (1) there exists a confidential relationship between the testator and the person alleged to have exerted undue influence; and (2) suspicious circumstances exist as to the Will. Pursuant to New Jersey case law, if the Will benefits one who stood in a confidential relationship to the testator and if there are additional ‘suspicious’ circumstances, the burden shifts to the proponent of the Will to prove that the Will is valid. As explained in the landmark Haynes case,
The burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. In such a case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.
(See the 1981 New Jersey Supreme Court decision of Haynes v. First Nat’l State Bank)
A confidential relationship may include guardian, power of attorney, partner, business agent, business associate, legal counsel, medical adviser, physician, nurse, and spiritual advisor. In regards to family relationships, a confidential relationship may be found where trust and confidence exist. In regards to “suspicious circumstances,” the suspicious circumstances need be no more than slight. As set forth in New Jersey case law,
Circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence, and there is cast upon the proponent the burden of coming forward with evidence in quality and force sufficient to dispel the presumption…[i]n a confidential relation slight circumstances may shift the burden.
(See the 1956 New Jersey Supreme Court decision of Blake’s Will)
The following are some examples from New Jersey case law as to circumstances or actions of the influencing party deemed “suspicious”:
- Where the Will provides for an unnatural disposition;
- Initiation of the preparation of the Will;
- Attending to the execution of the Will or selection of the drafting attorney or witnesses;
- Where someone in a position of trust drafts the Will or causes it to be drafted;
- Attempts to procure inter vivos gifts from the testator;
- Where attempts are made to isolate or exclude the testator;
- Efforts to conceal the Will or the fact that it has been drafted;
- Taking possession of the Will;
- Lying or spreading false stories about the natural beneficiaries;
- Embittering the testator or creating fear, paranoia, or prejudices; or
- Where the testator is mentally weak.
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. 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)