Will Contests and Probate Litigation
Probate Litigation and Will Contests | Trust Actions | Guardianship Disputes | Claims Against Estate Fiduciaries | Abuse of Powers of Attorney | Joint Account Litigation | Estate Accounting Challenges
Litigators and trusts and estates attorneys with the Law Office of Donald D. Vanarelli bring the requisite experience and knowledge to a wide range of probate lawsuits, estate challenges and contested guardianship litigation.
We seek a prompt resolution to disputes, while protecting and advancing our client’s interests at all times. Litigation attorneys and trusts and estates counsel work together on probate, estate and/or guardianship litigation. This combination of litigation experience and subject matter expertise enhances the likelihood of success for our clients.
I. Will Contests
Probate is a civil action initiated with the county surrogate to establish the validity of a testator’s Last Will and Testament. If the will complies with the legal formalities (i.e., the will is in writing, signed, properly witnessed and notarized), the Will is “admitted” to probate. Probate litigation has increased dramatically in the last decade due to the splintering of the family unit, an ever more litigious society and the increasing wealth in our country.
The most common type of probate litigation is the will contest, which is a lawsuit filed in court challenging the validity of a purported will. A variety of grounds exist under New Jersey law to challenge the validity of a will:
- Noncompliance with formalities – The focus here is on whether the purported will meets the statutory requirements as to form and execution. Generally, at a minimum, a will must be in writing and signed by the testator and two witnesses.
- Revocation – The inquiry is to determine whether the will was revoked by the testator. When a contestant believes that the will filed for admittance to probate has been revoked by the testator, he or she must prove that the will was revoked by (a) the execution of a new will or codicil, (b) a subsequent divorce or marriage, or (c) an express act of revocation.
- Lack of capacity – The issue is whether the testator lacked the mental capacity to make the will. Will contests based upon a testator’s alleged lack of mental capacity are very common types of testamentary challenges. Testamentary capacity typically requires that a testator have sufficient mental acuity to understand (a) the extent and nature of his or her property, (b) the natural objects of his or her bounty, i.e., the family members and loved ones who would ordinarily receive such property by will, and (c) how his or her will disposes of such property. Simply because an individual has dementia or mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament.
- Fraud – The issues are whether the testator was defrauded into signing a document, through intentional misrepresentation or concealment of a material fact which induced the testator to sign the will.
- Forgery – This claim involves the execution of a purported will by someone other than the testator.
- Mistake – The inquiry involves whether the testator was mistaken about the nature of the document, about the contents of the will or about an underlying fact which caused the testator to sign the will based on an inaccurate belief. The contestant has the burden of proving that the will did not comport with the testator’s intent.
- Undue Influence – This is the most common basis upon which the validity of a will is attacked. Undue influence refers to “mental, moral or physical persuasion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and accepting instead the domination and influence of another”. An undue influence challenge relates to whether the testator made a will freely, without being coerced by another person or persons. For example, a family member or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that individual, while excluding others who would typically receive an inheritance. To prove that the will was made under undue influence, one must show that a beneficiary exercised such influence over the maker of a will so as to override the deceased’s true desires. To prove undue influence, courts will consider evidence relating to (1) old age or illness; (2) whether the person signing the will lived under the control and supervision of the beneficiary; (3) whether the will replaced a prior will; (4) whether the will was made in favor of a non-relative; (5) whether family members were disinherited; and (6) whether the beneficiary hired a lawyer to draft the will or otherwise arranged for its creation.
The attorneys at the Law Office of Donald D. Vanarelli have extensive experience representing individuals who are challenging (and executors who are defending) the validity of a will, trust or other testamentary instrument.
II. Trust Actions
1) Trust Contests
A trust contest is similar to a will contest. An individual may use a revocable trust, rather than a will, to provide for the ultimate distribution of his or her assets to beneficiaries upon death. In other instances, an individual may create an irrevocable trust during life (usually in order to defer or avoid estate taxes) for the benefit of family members or charities. Like a will, the validity of a trust may be contested.
2) Trust Reformation
When a trust created during an individual’s life, or under a will, fails to qualify for favorable tax treatment or fails to accomplish a purpose for which it was intended, federal and state law often allow for the trust to be reformed through a court proceeding.
3) Trust and Will Construction
While a trust or will contest is based a challenge to the validity of the document, a construction proceeding begins with the assumption that the instrument is valid. In a construction proceeding, one or more parties seek court interpretation and adjudication of specific language in the instrument. Trust instruments and wills are sometimes unclear, ambiguous or contradictory as to (1) the identity of beneficiaries, (2) the operation of distributive property provisions, (3) the interests of lifetime beneficiaries versus remainder beneficiaries, or (4) the allocation of estate and/or income taxes. In such cases, a construction proceeding is appropriate.
4) Trust Litigation
The trustee of a trust owes the beneficiaries of that trust certain fiduciary duties of honesty, prudence, and undivided loyalty. When those duties are violated by a trustee, the beneficiaries may assert the following claims, among others:
- Failure to make proper and timely distributions
- Improper investments
- Excessive trustee compensation
III. Guardianship Disputes
As the population ages, the numbers of elderly increase and many face physical and mental impairments. Careful planning can protect an elder’s personal autonomy and estate assets against dissipation. For example, elders can utilize revocable “living” trusts and powers of attorney to management their assets. Unfortunately, many persons fail to make such plans, or the plans prove to be insufficient. As a result, court-imposed surrogate decision-making, such as a guardianship or conservatorship, may be necessary.
If an individual becomes incapacitated and can no longer manage his or her personal and financial affairs, family members, friends or other concerned individuals may ask the court to protect the incapacitated person by appointing a conservator or guardian. Similarly, parents or family members of developmentally disabled or mentally ill individuals can ask the court to appoint a guardian of the disabled person. In cases in which a minor is to receive a gift, inheritance, personal injury award, etc., it may be necessary for the minor’s parents (or other responsible adult) to seek appointment by the court as guardian of the minor’s person and estate. In situations where a minor’s parents die or parental rights are terminated, the court may appoint a guardian for the minor.
Ordinarily, conservatorship and guardianship proceedings are uneventful and uncontested. However, in some cases, disputes arise among family members or other interested persons.
Attorneys at the Law Office of Donald D. Vanarelli handle contested and uncontested cases involving the appointment of guardians for elderly or incapacitated persons. Contested cases may involve:
- Challenging the appointment of a sibling or other person as unfit.
- Seeking to have a guardianship revoked because of financial abuse, emotional abuse or failure to care for the ward.