We represent will contestants in actions to set aside wills procured by fraud and undue influence to ensure that the true beneficiaries’ interests are protected.

There are instances when a person may lack the ability to execute a will due to advanced age, illness, or mental incapacity. Our experienced NJ probate litigation attorneys investigate and litigate these types of claims.

As a general principle, New Jersey law requires only “a very low degree of mental capacity” to execute a will. The gauge of testamentary capacity has been stated to be whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of these factors to the others, and the distribution that is made by the will.

In any attack upon the validity of a will, there is a legal presumption that the testator was of sound mind and competent when he executed the will. This presumption can only be overcome by clear and convincing evidence. The burden of establishing lack of testamentary capacity falls upon the party contesting the will being offered for probate.

Our NJ probate litigation attorneys represent individuals in challenging wills believed to be the product of undue influence. Undue influence has been defined 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.”

Thus, a will may be rendered void if someone with a close relationship to the person making the will (the testator) uses that relationship to persuade the testator to include provisions which he or she would not have done independently. Two elements are required to raise a presumption of undue influence. First, there must be a “confidential relationship” between the testator and the beneficiary. Second, the presence of “additional ‘suspicious’ circumstances” in combination with such a confidential relationship must exist. The factors to be considered in determining whether a confidential relationship is present, . . . include whether trust and confidence between the parties actually exist, whether they are dealing on terms of equality, whether one side has superior knowledge of the details and effect of a proposed transaction based on a fiduciary relationship, whether one side has exerted over-mastering influence over the other or whether one side is weak or dependent. Although parent-child relationships are among the most natural of confidential relationships,” the mere existence of family ties does not create . . . a confidential relationship.