Probate Litigation

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In ruling upon the validity of a contested Last Will and Testament, there are numerous witnesses whom a Court may hear testimony from in deciding whether to invalidate the will. As is the case in any litigation, fact witnesses who possess relevant knowledge with regard to the facts and allegations set forth in the Complaint are essential witnesses. These witnesses may possess knowledge with regard to the mental status of the Decedent at the time the disputed Will was executed, the relationship that the Decedent shared with his family members, and other issues concerning the Decedent’s physical health and general appearance at the time the contested Will was executed.

In addition to fact witnesses…
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In general, the funds within a joint account belong to the account holders and all account holders have the right to the entirety of the account. Should one of the joint account holders pass away, it is generally accepted law that the account would then pass to the surviving account holder(s). Under the Multi-Party Joint Deposit Account Act, this is typically what occurs should an account holder pass away; however, there are exceptions to this general rule of law.
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Typically, the Executor of an Estate named by a Will has little or no prior experience in administering an Estate. As such, this somewhat complex process lends itself to the possibility of errors being made by the Executor or Executrix which could result in litigation. The purpose of this blog is to advise you as to some potential pitfalls to avoid if you are the Executor or Executrix of an Estate.

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In many of my previous blogs I have discussed the procedure involved in contesting a Last Will and Testament. This blog shall focus on other side of the equation, the defense of a Will contest. Since there are many facets involved in the defense of a Will contest, we shall first focus on what the named Executor or Executrix must do upon being served with a Verified Complaint seeking to contest the validity of a Last Will and Testament. For the purposes of this blog, I will assume that the Executor had already taken the necessary steps to admit to probate the Last Will and Testament of the decedent.
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Stark & Stark Shareholder Paul W. Norris authored the article “Contesting a Will: Best Practices for Successful Probate Litigation,” which was published on NJ.com on June 24, 2016. The article explains the process of what typically will happen if a will is contested after a loved one passes away. This process can only begin once “the named executor or executrix in the will then files this document with the county surrogate.” This process is called “admitting the will to probate,” and starts a process on a specific time schedule that must be followed in order to properly submit any contestations of the will.
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In general, if there is a personal injury action concerning the death of the Decedent it is typical that two types of claims are asserted in this action. The first claim is typically a wrongful death claim, and the second claim may be a survivorship claim. In general, the survivorship claim is distributed in accordance with the Decedent’s Last Will and Testament. Thus, the proceeds from the settlement or judgment are typically paid to the beneficiaries of the Decedent’s Estate in the percentage set forth under the Last Will and Testament. That is because the survivorship claim is deemed to be property of the Decedent’s Estate. The other claim which is brought, the wrongful death claim is not distributed in the same fashion to heirs of the Estate.
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If you are the beneficiary of an Estate where a Decedent recently passed away, you will undoubtedly like to know when you will receive your bequest under the Decedent’s Last Will and Testament. What you should be aware of, however, is that there are a multitude of steps that must occur before distributions can be made under a Last Will and Testament.

The first necessary step is that the Decedent’s Will must be admitted to probate. This would be done by the named Executor in the Will, and thereafter, the Executor would be appointed by the Surrogate to serve as the Executor of the Estate. The next step would be for the Executor to marshal all available liquid assets of the Estate and deposit them into an Estate account, or simply discover the location of the assets if they exist in the form of stocks, bonds, or other investment vehicles. Once this has occurred, the Executor will typically prepare an informal accounting, which will be provided to the beneficiaries of the Estate.

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If a party has decided that it would like to Contest a decedent’s Will, the next question that arises concerns the appropriate venue to file the Will Contest. The general rule, as set forth by Rule 4:80-1(c), is that a Will Contest must be commenced in the State and County where the decedent died a…

In general, the time limitation to file a lawsuit in the State of New Jersey is quite lengthy. For instance, an action related to a Breach of Contract matter would extend for six years from the date of the breach, whereas a Personal Injury matter may be filed two years after the cause of action accrued. With regard to a Will Contest, however, the period of time to file a lawsuit is actually quite short.

Rule 4:85-1 governs the time period pursuant to which a Will Contest must be commenced. In general, if you are an in-state party that time period begins to run four months after the probate of the Will or the granting of letters of appointment by the Surrogate. If you are an out-of-state party, that period begins to run six months after the probate of the Will or the granting of letters of appointment by the Surrogate. As such, the time period to contest a Will is extremely short based upon the confines of Rule 4:85-1.

It should be noted, however, that the Court can extend the time period for thirty days pursuant to Rule 4:85-2, based upon a showing of good cause. For the most part, the Court is willing to grant a thirty-day extension in light of the short time period set forth by the statute.

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