by Peter Klenk, Esq.

Will challenges are brought in the County in which the Will is filed for probate. Wills are probated in the county in which the deceased person resided. So if the person who died lived in Atlantic County, New Jersey but died in a car accident in Philadelphia, Pennsylvania, the Will is probated in Atlantic County. The same would be true if the person died while wintering in Palm Beach County, Florida but was a resident of Burlington County, New Jersey; the Will is probated in Burlington County and the Will challenge would take place in the Burlington County courts.

Most Wills are filed for probate and the estate administered without a Will Challenge. A Will Contest need be entered into thoughtfully and after deliberation. The courts view Wills as the last wishes of the deceased, and as the deceased person is no longer here to testify about the facts and circumstances of the Will’s drafting, the courts require strong evidence from the challengers that the Will should be set aside.

After considering the time, cost and effort that will be required for a Will Contest, there must be a good reason or grounds for the Will Challenge. This means that you must be an interested party, someone who has something to lose or gain from the outcome of the Will Contest, and you must have a basis for the Will Challenge beyond simply being upset by the probated will’s terms.

People interested in the outcome of the will most often include the deceased person’s surviving spouse and children, but the facts and circumstances may make anyone an interested person. The most successful grounds for a Will Contest are challenges to the deceased’s testamentary capacity, forgery of the will, or undue influence.

If the will contest is successful, the court may remove the will completely or void portions of the will. Prior provisions may be returned to the submitted will, or if it is voided completely, a prior will may be found to be the enforceable will or, if there is no prior will, then the person’s estate passes intestate (without will) and the assets are divided by rules set up by the state.

A Will Challenge is a complex undertaking. What follows is a short explanation of some of the grounds on which a successful will contest can be based, but for more details please look to the portion of our website dedicated to estate litigation.

Testamentary Capacity:
Each state has specific rules about what constitutes a will. The rules of Bucks County, Pennsylvania differ from those of Burlington County, New Jersey. There are certain steps that must be taken, such as the will being signed, the person signing the will being at least 18 years of age and that the person signing the will have the mental ability to sign the will. Typically Will Challenges that infer the person lacked testamentary capacity take the position that the person had some mental incapacity, such as dementia, mental illness, senility or was under the influence of some drug that made the person unable to understand the will. Typically the person signing the will must recognize and understand they have family, that they have property and that property’s value, that the will and its terms are disposing assets at his or her death and how they will be distributed. If a person does not understand these various elements, then that person did not have the capacity to sign a valid will.

Undue Influence or Forgery:
A will maybe successfully challenged if you can prove it is the product of undue influence (a third person used pressure to get the person to create a will with terms that they would not have but for the undue influence) or if the document isn’t even a true will but instead a fake or forgery.

A More Recent Will:
Sometimes a person will try to file an old will, one that has been replaced by a more recently executed will. The more recent will is the valid will, and by producing the most recent will the former will is voided. The process of presenting the newly found will may differ, such as being presented to a Surrogate in Broward County, Florida verses the Register of Wills in Montgomery County, Pennsylvania, but in all states the most recent will is the one that is upheld.

Will Contests and Challenges are complex undertakings, but the procedure exists to right the attempted wrongs of someone attempting to thwart the deceased’s intentions. Throughout our website, klenklaw.com, you may find more information about Will Challenges and to information about how to properly execute a will. Our firm focuses exclusively in the area of estate planning and probate, and the litigation surrounding estate planning and probate, so if you need assistance with an estate plan or have questions about Will Contests, please call one of our will challenge lawyers or estate planning attorneys for a free consultation. Our Will challenge attorneys have extensive experience in both New Jersey and Pennsylvania, so if your will contest question is in either state, feel free to contact us.