Gartenberg Howard partner Tom Howard discusses what is required when contesting a will.
The most important requirement when contesting a will is that the person must have standing to object. That is that they have an interest that will be affected by the will being admitted to probate and being probated. That is that they would have received a benefit from it. You frequently have people come in, such as a sister or a brother of a decedent who are not in a position to have a stake such as if the decedent had children, and they complain that the decedent was incapacitated or taken advantage of, but if they don’t have a stake in what would happen under the will or if the will was set aside, then they have no standing to object.
If you have standing, then there are two methods that can be used to begin a will contest.
- File a Caveat with the Surrogate
- File a proceeding with the Superior Court Chancery Division Probate Part, after the will has been admitted to probate
Filing a caveat will prevent the Surrogate from admitting a will to probate or in taking any additional action, because the rules provide that the Surrogate is unable to act whenever there is any contest or dispute over the admission of the will, terms or enforcement of a will. If this happens, the Surrogate has to refer the will to the Superior Court Probate Part. Even if you file a Caveat, that will only stop things from happening. If the proponent wants things to move further, they have to file a suit in the Superior Court, which is where the will contest will lie.
If you have questions about contesting a will in New York or New Jersey, please contact our office for a free initial consultation where we can discuss your specific circumstance.
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