By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Litigation Attorney

If you think a Will or Trust should be challenged what can you do? Where do you start? Let me help you better understand the system. New Jersey operates its court system under what are known as the “Court Rules”. In challenging a Last Will you need to know these “Court Rules”.

Rule 4:85-1 provides:

If a will has been probated by the Surrogate’s Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the gran of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter.

New Jersey case law regarding testamentary capacity is fairly straight forward but the legalize used by the courts is often difficult to articulate in everyday language. “The case law clearly states that the threshold for testamentary capacity is very low, one need only possess a very low degree of mental capacity to execute a will, even less than is needed to enter into a contract.”

When challenged on an appeal about mental capacity the findings made by the judge in a non-jury trial are often upheld.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: “we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]”

In particular, “[t]he findings of the trial court on the issues of testamentary capacity and undue influence, though not controlling, are entitled to great weight since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony.”

“In any attack upon the validity of a will, it is generally presumed that ‘the testator was of sound mind and competent when he executed the will.’”

(1) the gauge of testamentary capacity is whether the testator can comprehend the property he is about to dispose of; (2) the natural objects of his bounty; (3) the meaning of the business in which he is engaged; (4) the relation of each of the factors to the others, and (5) the distribution that is made by the will. Testamentary capacity is to be tested at the date of the execution of the will. Furthermore, [a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will. [T]he burden of establishing a lack of testamentary capacity is upon the one who challenges its existence [and] [t]hat burden must be sustained by clear and convincing evidence. A testator’s misconception of the exact nature or value of his assets will not invalidate a will where there is no evidence of incapacity. Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity.

In any event “[i]t is well settled in this State that every citizen of full age and sound mind has the right to make such disposition of property by will or deed as he or she in the exercise of individual judgement may deem fit.”

A will which on its face appears to be validly executed, may be set aside if it is tainted by “undue influence.” Haynes, supra, 87 N.J. at 176. The court has defined undue influence as

a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer in lieu thereof.

“It denotes conduct that causes the testator to accept the ‘domination and influence of another’ rather than follow his or her own wishes.” “Ordinarily, the burden of proving undue influence falls on the will contestant. Nevertheless, we have long held that if the will benefits one who stood in a confidential relationship to the testator and if there are additional ‘suspicious’ circumstances, the burden shifts to the party who stood in that relationship to the testator.”

To discuss your NJ Estate Probate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.