When developing your estate plan, it is important to recognize the possibility that, after your death, that plan could be challenged by those who expected more favorable treatment from you under your Last Will and Testament. For example, if you choose not to leave your estate equally to all of your children under your will, those children treated less favorably may bring a “will contest” after your death, claiming that your will was the product of “undue influence” or that you lacked the mental capacity to execute your will. With this in mind, if you do not intend to distribute your estate equally to your heirs, you can take steps now to minimize the risk of a future challenge to your will.

Standards For Determining Testamentary Capacity

A person possesses the capacity to make a valid will if he/she is at least 18 years of age and “of sound mind.” This requires being “capable of understanding the general nature of the business in which he is engaged and the particular distribution he is effecting; of recollecting the property of which he means to dispose and the persons who naturally are the objects of his bounty; and of comprehending the interrelation of these factors.” 5 New Jersey Practice, Wills and Administration §33 (Alfred C. Clapp) (rev. 3d ed. 2002) (quoting N.J.S.A. 3B:3-1); §36 (citations omitted).

This standard is not considered to be demanding. A “very low degree of intelligence” is sufficient; in fact, even a person with memory lapses or classified as insane or a “senile dement,” or who is sufficiently impaired as to justify the appointment of a guardian, may have the capacity to make a valid will. Id., §36 at 153-154; §38. However, because a person with diminished capacity is generally more vulnerable, proving that a “testator,” or a person making a will, was in a weakened mental state may bolster a claim of undue influence. R. Houghton and M. Wigod, The Will Contest at 10  (ICLE Aug. 28, 1998).

Standards For Determining Undue Influence

Undue influence is defined as “‘mental, moral or physical’ exertion which has destroyed the ‘free agency of a testator’ by preventing the testator ‘from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” If the will benefits a person who stood in a “confidential relationship” with the testator, and there are additional “suspicious” circumstances, the law presumes that undue influence was present, unless the person defending the will proves otherwise. Haynes v. First National State Bank of New Jersey, 87 N.J. 163 (1981).

Examples of a “confidential relationship” include when the testator lives with and depends upon one of his/her children for his/her daily needs. “Suspicious circumstances” may include a will favoring one family member over all the rest; the beneficiary arranging for the will drafting or execution; or the beneficiary accompanying the testator to the lawyer’s office, being present at discussions with the lawyer concerning the will, concealing the fact that the will had been executed, or denying family members access to the testator. R. Houghton and M. Wigod, The Will Contest at 11  (ICLE Aug. 28, 1998); 5 New Jersey Practice, Wills and Administration §62.

Taking Steps Now To Avoid Will Contests Later

As illustrated above, the same factors that may lead you to favor one child in your estate plan (for example, the fact that you might live with that child and depend on him/her for your daily needs) may also be used to support a claim of undue influence. Moreover, although it is certainly unfair to presume that an individual lacks testamentary capacity simply based upon his/her age, it is important to document your decision-making abilities when it comes time to execute a will. See Miller, F. Representing the Elderly or Disabled Client: Four Things Every Lawyer Should Consider (South Carolina Lawyer May/June 2001).

With this in mind, it is important to address these issues with your lawyer when considering and executing an estate plan.

When it is time to execute your will, keep in mind that those persons who have an interest in your estate plan (for example, the child that you intend to favor in your will) should never be used as a witness to the will, because using  an “interested” witness could later raise a question of undue influence. In fact, the mere attendance of a family member or other person with an interest in your estate plan at the will signing should be avoided:

A testator is often brought to the attorney’s office by one of his or her children. If the testator is not leaving his or her estate equally to all of his or her children, the child or children who accompany the testator should not be allowed in the conference room while the Will is being explained to, and signed by, the testator. Indeed, once the testator indicates that he or she does not wish to treat his or her children equally, his or her attorney should insist that the testator’s children stay in the waiting room at all later meetings between the testator and the attorney to discuss the Will. 20 New Jersey Practice, Skills and Methods §1106 (John Lichtenberger) (3d ed. 1994).

Another device that may be used to guard against will challenges by providing evidence of the testator’s intent, is a plain language letter from the attorney to the testator that memorializes the testator’s estate planning objectives.  Yet another tool is for the testator to prepare a family tree and a balance sheet of assets, to demonstrate that any exclusion of a relative from the will was not accidental, and to show that the testator knew the extent of his/her assets. Martin M. Shenkman, Will Contests: Minimizing Risk To Clients, New Jersey Lawyer at 47 (September 14, 1998).

The testator might also consider explaining, either in the will or in a separate letter, why he/she is making an “unnatural” disposition favoring a particular heir. Id. at 47; Jaworski, The Will Contest, 10 Baylor L. Rev. 87, 91 (1953) (cited in R. Diab, The Will Contest, (ICLE Aug. 28, 1998)). Additionally, the lawyer’s use of a checklist, which  will then be included in the lawyer’s file, may help to ensure (and document) that key issues and questions have been addressed at or before the will signing. Finally, if the testator’s mental capacity is in issue, or there is a potential for a claim of undue influence, the testator may wish to consider being interviewed by a psychiatrist. Shenkman, Will Contests: Minimizing Risk To Clients, New Jersey Lawyer at 47.


In sum, while the disposition of your estate is a highly personal decision, keeping in mind the potential consequences of an unequal estate distribution, and taking steps now to avoid challenges to your estate plan, is the best measure toward achieving your estate planning goals.