Last Will & TestamentWhen considering whether to contest a decedent’s Last Will and Testament, an individual should consider whether red flags might be present which may point to a successful basis to challenge a disputed Will. The purpose of this article is to examine potential red flags which could highlight a potential issue with a Will which may lead to its invalidation. While this list is not exhaustive, these red flags tend to be the most frequently encountered issues concerning improperly drafted and/or executed Last Wills and Testaments.

One often encountered scenario is when a decedent executes a new Will near the end of his/her life which changes their previous estate plans. When such a Will is drafted, a person who wishes to challenge the Will should look at several issues, some of which are discussed below, to determine whether such a document could withstand a challenge to its validity. When a Will is drafted near the end of a person’s life, a strong consideration should be whether this individual possessed sufficient mental capacity to execute the document. Further, when a person is in the process of dying, or is suffering from other mental disorders, they may be particularly susceptible to the improper influence of other people which cause them to change their estate plans. As such, whenever a Will is drafted within the last few months of a decedent’s life these issues should be carefully reviewed.

Another scenario is when an individual assumes control of the decedent’s finances and health care, and shortly thereafter, a new Will is drafted. When a person has inserted themselves into the life of the decedent, and it appears that they have assumed control of the decedent’s life, it is typically evidence that there now exists a confidential relationship. Should such a confidential relationship exist, and thereafter, a new Will is drafted which benefits this individual a presumption that the Will is invalid could arise. Therefore, whenever there is a person who may have a power of attorney, or when an individual seems to have an overmastering control over a decedent, any newly drafted Will should be carefully reviewed for validity.

A Will might also be challenged if it was executed at the time the decedent’s mental capacity was highly questionable either due to a degenerative condition, or an intervening event that lead to the mental incapacity. In order to properly execute a Will, a decedent must have the legal mental capacity to do so. In general, this means that the person must understand the assets that they have, and furthermore, they must understand to whom they wish to bequeath their assets. Although this standard is fairly low, there are times when a Will could be invalidated due to the decedent suffering from a degenerative mental condition, or a sudden condition that results from an injury or accident. When a Will is executed under such circumstances, the Will may be able to be challenged effectively due to a lack of mental capacity of the decedent.

A particularly troublesome scenario that appears at times is where the decedent’s attorney, or the drafter of the Will, becomes a substantial beneficiary under the new Will that was drafted. This situation can involve a scenario where an attorney drafted the Will, or when a layman drafted the Will for the decedent. In such instances, where the drafter of the Will becomes a main beneficiary by this instrument, there arises a presumption that the Will is invalid as a matter of law. The burden of proof would then shift to the proponent of the Will to demonstrate its legality by clear and convincing evidence. This is a difficult standard to meet, and thus, a Will contest under these circumstances typically can prove successful. Also, it is a bad practice in general for a layman or an attorney to engage in such drafting.

It is also not uncommon to encounter a Will that has issues with its content, or the manner in which it was drafted and executed. Aside from issues surrounding the creation of a Will, there can also rise technical issues if the Will does not satisfy the relevant statute concerning the necessary formalities. Typically, New Jersey statutes favor the courts finding that a document is a decedent’s Last Will and Testament, however, this is not absolute. As such, if there are issues with the document itself, or its execution it could be deemed invalid. Therefore, whenever you are seeking to determine whether a Will may suffer from such technicalities the relevant NJ statutes must be carefully reviewed.

The final potential issue that merits discussion involves when a drastic change is made concerning the decedent’s estate plans with no discernable reason as to why the changes were made. This may be the biggest red flag of all of them and involves a scenario when there is a drastic change to the decedent’s estate plans, and yet, there were no intervening factors that lead to the drastic changes. Such a drastic change could point to problems concerning the decedent’s mental capacity, the presence of undue influence by a third party, or some other factors concerning the decedent’s mental health which lead to drastic change. In general, should there be a drastic change discovered these areas should be carefully reviewed to determine whether a valid challenge to the Will may exist.

As discussed above, these potential red flags are not an exclusive list of the legal basis to challenge a Will, however, involves the most typical scenarios encountered when a Will is challenged. If you are seeking to challenge a Last Will and Testament as something does not seem right, or something appears improper, it is highly suggested that you consult with competent counsel to review the potential issues to determine whether it makes sense to challenge a Will. While the process is highly technical, fact witness testimony is essential in such cases.