Can You Get A Court to Change A Will or Trust? Is It Possible to Win Such A Case?

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest Probate Litigation Attorney

Books and legal research in the courthouse

Sometimes mistakes are made in the drafting of a Will or Trust.  Sometimes the lawyer gets it wrong or the creator of the Will (generally when a pre-printed Will form or handwritten Will or Trust is used) writes a lousy, confusing and/or ambiguous document.

When I use the term “mistake”, I am generally referring to vague and overly broad words or phrases, or conflicting provisions which make no sense.  A simple example is a provision that states, “I give the entirety of my estate to my son, but give unto my daughter the sum of $100,000.”  Well, how can that be?  The answer…it can’t.  The provisions conflict.  Does the daughter get $100,000 and the son the rest?  Maybe, but it’s this type of thoughtless language that creates legal fights.  Here’s where the court is called upon to exercise its power of “reformation”.  Reformation means to correct an error or defect in a document (in this case the will, codicil or trust) and thereby making the document better in form and accurate in content.

Successfully Petitioning A Court To Change a Will or Trust

While some reformation claims cane be tough to win, others are easy.  Why some and why some not?  Because the burden of proof is placed upon the party claiming the mistake or conflicting/vague language in the will.

The goal of the Probate Court judge in a will contest or trust dispute case is to establish the descendant’s intent as written in the Last Will and/or Trust.  The court’s analysis is whether the testamentary intent expressed in the will is frustrated in whole or in part because of a mistake, a lawyer’s malpractice or because ambiguous, conflicting and/or confusing language was used.  A disappointed beneficiary must establish and prove (any) one of the above claims by “clear and convincing evidence”.

NJ law clearly seeks to discourage attempts to contradict clear and understandable language found in documents.  Our state law presumes the sanctity of testamentary and other types of writings and presumes their validity and enforceability.  In fact, New Jersey has a statute, N.J.S.A. 2A:81-2 that imposes a clear and convincing burden of proof on anyone who makes a claim against a representative of an estate where the claim based upon an “oral promise, statement or act”.

Under this statute, if someone is trying to reform a will on the basis of the testator’s mistake, he or she must also prove that the mistake was made by clear and convincing evidence on some cases that’s easy to do.  This evidence standard discourages more frivolous cases because the challenger needs proof to win their case.

Disappointment in the terms of the will or trust is not enough.  The courts seek to reduce fraudulent claims against an estate by establishing a burden of proof for a challenging. The courts seek to deter the more common problem of suits based on the sincerely held belief that the claimant deserved more than the will provides.

Often family members and others who expected to receive an inheritance or some portion of an estate or trust are disappointed with what they read or find out.  That’s natural.  It hurts, especially if you’re a child, spouse, sibling or close friend.  But your disappointment means nothing if you don’t have evidence of a mistake to reform the document to allow the judge to reform the document.

Here’s how Hanlon Niemann & Wright can help you!  We’ll read the document(s), listen to the facts and analyze the evidence.  When we’re done, we’ll tell you whether your case has merit… and whether a will and/or trust reformation case is winnable.  Not that you’re guaranteed to win or lose (we are not the judge) but we’ll tell you whether your case has the potential to win by clear and convincing evidence.  Remember it’s the clear and convincing standard of evidence that applies here.

After 30+ years of diverse and complex experience, at Hanlon Niemann & Wright we’ve seen and heard it all.  We understand probate estate litigation and Last Will/Trust disputes.  We’re experienced trial attorneys.  We’re here for you.

Fred Niemann, Will Contest Litigation Attorney in NJ

Fred Niemann, Will Contest Litigation Attorney in NJ

Contact Fredrick P. Niemann today, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  I look forward to meeting with you. It is a pleasure to be of service.