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

When it comes to getting a beneficiary the money he or she deserves when a loved one passes away and they have been left out or mostly passed over in the Will or Trust, there are a limited number of claims that can be made in the probate court. The most common claim to make that a will should not be probated is that the decedent was subject to the undue influence of somebody else when the will was made.  To summarize, undue influence occurs when someone establishes a confidential relationship with another person and suspicious events then take place which leads to a will or trust that often gives a large percentage of the estate to one or a limited number of people. For example, there are cases where an elderly person who was feeble and lonely was befriended by a close friend or a neighbor.  This person took care of the elderly person and became his or her confidant.  The friend or neighbor then brings the person to a lawyer, and the elderly person makes the lawyer change the will to add this person as a beneficiary, leaving family members out in the cold.

Recently, a potential client came in and asked us about filing an estate litigation case.  He lived out west, while his dad and sister lived here.  He claimed that while caring for their dying father, his sister was draining their father’s bank accounts, leaving no inheritance to him.  An Undue influence claim could be winnable but the bank accounts passed to the beneficiary outside of the will.  So what could we do?  While there may be other remedies available in the Chancery Division of the Superior Court, there is a new tort that is starting to gain traction in other states that I can see New Jersey eventually adopting.  It is called the “tortious interference with an expected inheritance.”  This cause of action exists outside of the realm of probate and goes after someone who prevents somebody from receiving an inheritance or gift that he or she would otherwise have received.  The wrongful conduct is usually accomplished through fraud or placing the third party under duress.  Based on what our client had told us, if we could prove that the money in the bank accounts was intended to go to our client, and the sister intentionally kept the money away from him, it would seem to fit the definition of this tort.

However, our courts are cautious to recognize this tort.  In a case from the Appellate Division, the court rejected the use of the tort, stating that the probate court had often equitable remedies to assist the plaintiff in recovering her inheritance.  It then listed circumstances where the tort would be appropriate, including if gifts are made when the decedent was alive, the beneficiary was not related to the deceased, the deceased’s assets went into a revocable trust, a will was modified, leaving a person who was meant to get something through the will unable to attain it.  Because it is new cause of action, our courts gradually adopt it but for those cases like the one I mentioned above, where a will contest using the claim of undue influence alone cannot get the money back, a tort like this will help recover those monies.

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.