Any last will and testament is potentially subject to judicial challenge. If a will is prepared in accordance with the formalities required by state law, the surrogate is empowered to accept its presentation. New Jersey requires wills to be written and signed by the testator (maker of the will) in the presence of two witnesses. If the signatures are notarized, the will is “self-proving” and neither witness needs to verify his or her signature to the surrogate. However, in New Jersey, any writing intending to be a will may be found valid if the court finds by clear and convincing evidence (higher standard than the usual preponderance of the evidence) that the document was intended to be the testator’s will.
Although some states have now recognized electronic wills, New Jersey has not to-date. An electronic will is a will written on an electronic device, e-signed by the testator and witnessed by persons who may not physically be present with the testator, but connected via video conferencing.
The ten most common grounds for challenging a last will and testament are as follows:
- Capacity/Insane Delusion: The testator lacked sufficient mental capacity to execute a will. Testimony from medical professionals is required; anecdotal evidence is insufficient.
- Undue Influence: The will is not the product of the testator’s free will, but rather the result of another unduly influencing or coercing the testator. This cause of action often arises when a parent leaves all, or the bulk, of his estate to one child to the exclusion of the other children.
- Elective Share: Although you can disown an adult child, you cannot impoverish a spouse. The surviving spouse is generally entitled to one third of the deceased spouse’s augmented estate less the surviving spouse’s own wealth.
- Fraud in the Execution: Testator deceived into signing a document he did not think was his will.
- Fraud in the Inducement: Testator signs his will in reliance on another’s fraud or misrepresentation.
- Mistake in the Execution: Testator is mistaken as to the document he is signing.
- Mistake in the Content: Testator is mistaken as to the terms of the will.
- Mistake in the Inducement: Testator executes will based on inaccurate belief, such as mistakenly believing that a potential beneficiary is deceased.
- Revocation: The testator intended to revoke the will by burning, tearing, cancelling, obliterating or destroying the document or any part of it. This cause of action often arises when the original will is not located and a copy is probated. The question for the court is: Did the testator destroy the will intending to revoke it, or is the will simply misplaced?
- Forgery: Someone other than the testator signed the will.
