In rare instances, during the administration of an estate, there might arise an ambiguity within the language of the decedent’s Last Will and Testament as to how the decedent wished to dispose of his property pursuant to his Will.
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Tangible vs. Intangible Assets in Estate Administration
Under a Last Will and Testament, a decedent disposes of both their tangible personal property as well as their intangible personal property. Questions might arise in the context of administering an Estate, however, as to whether an item is classified as tangible personal property or intangible personal property of a decedent. This distinction is often important, as the distribution of an item of significant value can be directly affected by this determination.
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Red Flags Indicating a Potentially Invalid Will
When 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.
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Removal of An Executor of An Estate
Once an individual is appointed an executor of an Estate, they are tasked with the proper and timely completion of the administration of the Estate, as well as the distribution of assets and property of the estate to its beneficiaries. Provided the executor understands his/her duty to the estate and seeks appropriate help in this process, the administration of an estate can be timely completed and assets appropriately distributed. Unfortunately, it is not uncommon for issues to arise in the administration of an estate. The below sub-headings address scenarios where an executor could be removed by the Court once an application is filed by a beneficiary of an Estate. This is not an all-inclusive list, but instead, discusses some of the main issues that are typically encountered.
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Counsel Fee Award When Contesting A Will
In general, the party tasked with defending a decedent’s Will during a Will contest, which is typically the executor, is entitled to the reimbursement of counsel fees that they incur in defending the Will on behalf of the Estate. At times, however, a party who has filed an action to contest a Last Will and Testament may also be entitled to an award of counsel fees provided there was a reasonable and legitimate basis to contest the decedent’s Last Will and Testament. In a recent appellate division case, the court affirmed an award of counsel fees to the contestant of a decedent’s Will for these very reasons.
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Defending a Will Contest
If you are the named executor of an Estate, there is the possibility that an action may be brought to challenge the validity of the Will which named you executor. Typically, this process begins with a verified complaint by an individual that seeks to contest the validity of the decedent’s Last Will and Testament submitted to the probate court. The statute of limitations for contesting a Will varies by state. For example, in New Jersey, it is merely four months for in-state residents and up to six months for out-of-state residents. Provided that a plaintiff (the person challenging the Will) has complied with the applicable state deadline by timely filing the Will contest, the executor should take several actions to prepare for defending against the Will contest.
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Injunctive Relief to Prevent Monetary Damages in Estate Litigation
In general, a party is only entitled to injunctive relief if they can demonstrate that the damages for which they seek redress are not compensable by an award of monetary damages, however, in a recent US District Court case, the US District Court decided that injunctive relief was called for to preserve monetary assets pending the resolution of a matter. Typically, it is rare to see estate litigation before a US District Court; however, the District Court correctly applied New Jersey law in finding that injunctive relief was appropriate.
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Counsel Fees in Probate Litigation, Even if Unsuccessful
In previous blogs, I have discussed an award of counsel fees to a plaintiff who successfully contested a last will and testament. In a recent appellant division decision, the appellate court reviewed an award of counsel fees to a plaintiff who challenged a last will and testament, however, whose challenge was not successful.
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No-Contest Clause in a Will
It is not uncommon for drafters of Wills to include a “no-contest clause” in a decedent’s Last Will and Testament. The purpose of the “no-contest clause” is to provide for the disinheritance of an heir to the estate should they challenge the validity of the decedent’s Last Will and Testament. While a “no-contest clause” could ultimately have this effect, it can likewise be defeated during a challenge to a Will. Further, if the litigation is settled before trial, there would typically be an agreement between the parties that the “no-contest clause” would not apply.
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Challenging the Transfer of Non-Probate Assets
Suppose a party seeks to challenge a decedent’s last will and testament based upon claims of competency or the improper assertion of undue influence. In that case, this contestant may also seek to challenge the transfer of certain non-probate assets that could comprise either the majority or a substantial percentage of the decedent’s assets. The grounds for challenging such transfers may be identical to those pursued in a challenge to a last will and testament, however, may be subject to applicable statutes and different standards of proof that govern a challenge to a particular class of asset.
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