In a contested guardianship, the guardianship applicant often wishes to pursue additional claims involving the validity of  a Last Will and Testament or other estate documents purportedly executed by the alleged incapacitated person at or before the time the guardianship action was filed. In such cases, plaintiffs often claim that the Last Will and Testament or estate documents should be invalidated on the grounds that they were the product of undue influence and/or that the alleged incapacitated person lacked the capacity to execute those documents. Defendant, or others opposing the guardianship, often defend the validity of the estate documents by claiming that the lawsuit is premature, and amounts to a pre-death will contest which is not favored in the law. However, when the evidence necessary to prove incapacity is similar to or the same as the proofs that would be required to invalidate the estate documents, courts may permit a pre-death will contest to proceed to trial.

In In re Trust of Niles, the former trustee and residuary beneficiary under Mrs. Niles’ former trust filed a verified complaint, prior to Mrs. Niles’ death, seeking, inter alia, the appointment of a guardian ad litem for her on the basis that she had been unduly influenced into changing her will. 176 N.J. 282, 289-90 (2003). Accordingly, the trial court appointed an attorney to act in her best interests, and to investigate the claim of undue influence.  As the Supreme Court recognized, although Mrs. Niles was alive during this period, her guardian ad litem was required to participate in the litigation because of Mrs. Niles’ “declining mental health.” Id. at 295. A trial on the undue influence claim resulted in the court finding the amended will and other estate documents to be invalid, as a result of undue influence, and reinstating Mrs. Niles’ prior will. These events all occurred prior to Mrs. Niles’ death. Id. at 291. The finding of undue influence was appealed by the defendants, and affirmed by the Appellate Division. Id. at 292. The Supreme Court denied the defendants’ petitions for certification. 174 N.J. 362 (2002).

Similarly, in In re Sable, 2009 N.J. Super. Unpub. LEXIS 334 (App. Div. Feb. 11, 2009), certif. denied, 200 N.J. 370 (2009), concerned another pre-mortem will contest. There, one of Mr. Sable’s sons filed an action seeking guardianship of his father, and seeking to invalidate any wills he executed after a certain date, based upon undue influence and lack of capacity. Following a trial, the court found that Mr. Sable was incapacitated as of October 1, 2003, and that all estate documents he executed on or after that date were void as a result of his lack of capacity, as well as his son Barry’s undue influence. Barry appealed, arguing, inter alia, that it was improper to invalidate Mr. Sable’s 2003 will while he was still alive. Id. at *18. The Appellate Division recognized that, ordinarily, a will is “’ambulatory and speaks only as of the death of the testator.’” Id. at *23 (citing Matter of Reilly, 201 N.J. Super. 306, 311 (App. Div. 1985), However, it relied upon Niles for the proposition that estate documents executed subsequent to an adjudication of incapacity may be invalidated while a testator is living. 2009 N.J. Super. Unpub. LEXIS at *24. It further concluded that In re Cohen, 335 N.J. Super. 13 (App. Div. 2000), certif. denied, 167 N.J. 632 (2001), by implication, authorized a court to invalidate a will during a testator’s lifetime. In affirming the trial court, the Appellate Division in Sable  reasoned that,

the same proofs were necessary to show incapacity to execute powers of attorney as would have been required to invalidate the will. There is no need for an additional trial to invalidate the will since the same result would be reached given the court’s determination that [Mr. Sable] was mentally incapacitated as of October 1, 2003. 2009 N.J. Super. Unpub. LEXIS at *25.

However, at least one appellate panel has reversed the verdict in a pre-death will contest on the grounds that the trial court’s holding was not in ward’s best interests. In In re Cohen, 335 N.J. Super. 13 (App. Div. 2000), certif. denied, 167 N.J. 934 (2001), involved Henrietta Cohen, a ninety-six (96) year old testator who was alive but legally incapacitated. In 1997, Henrietta’s grandson instituted a guardianship proceeding and other family members intervened. Among the claims of the intervening family members was a claim that Henrietta’s 1992 will and trust were void because she was incompetent when they were executed. After Henrietta was adjudicated an incapacitated person, her family members reached a settlement concerning the distribution of her estate, which differed from her 1992 testamentary plan. The lower court approved that settlement agreement.

In reversing the lower court’s approval of the settlement agreement, the Appellate Division found that the proposed distribution plan did not meet the criteria set forth in In re Trott, 118 N.J. Super. 436 (Ch. Div. 1972), and was not in Henrietta’s best interest. 335 N.J. at 32. Tellingly, the Appellate Division also found that “it would be premature for any party to contest Henrietta’s will and trust while she is alive.” Id. at 33 (emphasis supplied).

Therefore, under the present state of the law in New Jersey, if the proofs necessary to establish incapacity are the same as the proofs necessary to prove that the ward’s Last Will and Testament and/or other estate documents should be invalidated based upon undue influence and/or incapacity, and such a finding prior to death would be in the ward’s best interests, a pre-death will contest should be allowed to proceed.