By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, New Jersey Will Contest Attorney
I was contacted by a potential client regarding the administration of her aunt’s estate. The aunt was in her 50s and died of cancer. She had a live in helper (red flag here) who kept her from seeing her family or from allowing visitors in the home. The live in helper had the aunt sign a form Will taken from the internet whereby she left most of her belongings and her real estate to the live in helper. The Will named her niece as the executrix. The niece was the one seeking my assistance.
The niece signed the Will in the spot next to where it said executor and the live in helper signed as a witness. So technically two witnesses signed. The niece believes there was undue influence by the live in helper and that her aunt was heavily medicated when the signed the Will. She was in the hospital dying of cancer.
So, here we have a niece who is the executor and has possession of the Will but wants to contest the Will she is named as executor. I don’t think the niece has standing to challenge the Will but if the Will is set aside her mother (aunt’s sister) would inherit all of the aunt’s estate through intestacy. So, nieces’ mother does have standing to contest the Will and the niece (named as the executrix) would like to see the Will set aside as well. However, as the named executrix she has a fiduciary duty to offer the Will for probate even though she wants the Will set aside, but her mother could still file a caveat. Then the niece would still have to file a complaint to probate the Will.
While a named executor is not required to probate the Will, and can merely deposit the original with the Surrogate and renounce her right to serve, that may not be the best option in this case. By not serving, if the Will is submitted for probate before the Superior Court, assuming a caveat is filing prior to filing the Will, the helper can apply to be named administrator as the person most interested in the estate. If appointed, even though the Will has not been admitted to probate and is being challenged, she would have control over the assets. If the Will is eventually thrown out, but the helper has already taken the estate assets and spent them, good luck enforcing the judgment.
In this case, I believe the sister should file a caveat through her attorney (preferably a probate litigator), then have the niece submit Will for probate with a different attorney, serving legal process on the helper and all the interstate beneficiaries.
Then, while aunt and helper fight over the undue influence case, niece can simply administer the estate and stay out of the litigation completely. This better protects the assets in case aunt wins or settles, and would at the very least entitle niece to an executor’s fee.
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