Contesting a Will in New Jersey

The Chamberlain Law Firm

As seasoned New Jersey probate attorneys, we know that the probate process in the Garden State can be complex. This convoluted process becomes even more complicated when the decedent’s last will and testament is of questionable validity. If you believe that the last will and testament of a deceased relative was improperly executed, this guide will walk you through the process of contesting a will.

What Constitutes a Valid Will?

Before you question the validity of a last will and testament, you should first consider what makes a will valid in the first place. In general, to properly execute a will in New Jersey, the testator must be at least 18 years of age and of sound mind. The will must then be signed in the presence of two witnesses (who are not beneficiaries of the will), and the witnesses must sign within a reasonable time after the testator signed or acknowledged their signature.

Who May Challenge a Will?

To contest the validity of a will, you must have legal standing to contest the validity of the will. The rule of thumb is that, in order to have standing to contest a will, you would stand to take more under either a prior will or the laws of intestate succession. This means that heirs at law (i.e., spouses, children, parents), creditors of the testator, or beneficiaries under prior wills have standing to contest a will.

Grounds for Contesting a Will

There are a number of reasons to contest a will, including that the will was not properly executed, the testator was under improper influence of another, or the will was produced through fraud or mistake.

Improper Execution

The will may be contested for not being duly executed. This issue may arise if the will is not in writing, the testator did not sign the will in the presence of witnesses, or the witnesses did not sign the will within a reasonable time after each witnessed the signing.

However, even if the will fails to comply with the statutory formalities, it can still be valid. The surrogate court may still admit the will into probate if it meets the requirements of a holographic will or writing intended as a will. A holographic will is valid if the signature and all material portions of the document are in the testator’s handwriting.

Lack of Testamentary Capacity

A challenger may raise the issue of testamentary capacity. For example, the testator was not yet 18 years of age or of sound mind. 

A sound mind refers to the ability to understand the property the testator disposes of, the natural objects of one’s bounty, the meaning of the business which one is engaged in, or the distribution that is made by the will.

This may appear as a concern for testators diagnosed with dementia. However, a dementia diagnosis does not necessarily invalidate the will, since one’s testamentary capacity is measured at the time of the will’s execution—not before or after. Therefore, if a medical professional can attest to the testator’s capacity at the time of execution, then the will may be properly executed.

In general, there is a legal presumption that the testator has testamentary capacity, and the challenger has the burden of overcoming the presumption.

Undue Influence

Undue influence refers to a moral, mental, or physical exertion by another person at the time of the execution of a will, resulting in a lack of free will on part of the testator. The contestant must prove that the testator lacked free will, that the testator acted against their will, and would not have done so if not for the alleged influence. Note that simple persuasion is insufficient to overcome the presumption that the will was duly executed.

Where the issue of undue influence is raised, the court will consider the physical and mental condition of the testator and the person who allegedly committed the undue influence, the temperament of the testator and the influencer, and the means of the influence exerted.

Establishing undue influence requires a showing of (a) a confidential relationship between the testator and benefitted party, and (b) suspicious circumstances. Once the contestant shows these factors, the burden shifts to the benefitted party to prove that there was no undue influence. A confidential relationship is presumed where the testator is in a weakened position in relation to the influencer, and some relationships (i.e., attorney-client, parent-child) are inherently confidential.

Fraud and Mistake

A contestant could also allege that the will was executed or induced by fraud. In such cases, the benefitted party has deceived the testator and the testator relied on the deception when making or signing the will.

The challenger has the burden of proving that (a) a false statement was made to the testator and (b) that the testator disposed of property differently than they would have if the statement was not made. There must also be evidence presented that the statement was made with knowledge of the falsity and intended to deceive the testator.

Finally, a will may be invalid if the testator made a mistake in identifying the instrument as their will. New Jersey courts have recognized three types of mistakes in this context: mistake in the execution (the testator was mistaken as to the nature of the document—for example, the testator signed another person’s will), mistake as to the contents, and mistake in the inducement (the testator was influenced to execute the will based on a false belief—for example, the death of a beneficiary who was not in fact dead).

How to Contest a Will

As an initial matter, if you are considering contesting the validity of a will, the first thing that you must do is contact an experienced New Jersey probate attorney. As you can see, the standard for overcoming the presumption of due execution is quite high, so an experienced attorney can advise you as to whether it is worth contesting a particular document.

If the will has not yet been admitted to probate, the contestant can file a caveat, an objection to the will that prevents the court from probating the will, in surrogate’s court. The contestant must then file a complaint with New Jersey Superior Court, Chancery Division, Probate Part.

If the will has already been probated the contestant must file a complaint with the Probate Part within four months of the probate, or within six months if the contestant resided outside of the Garden State at the time of probate.

In New Jersey, regardless of who prevails in a will contest proceeding, the court may direct the estate to pay legal fees for both the contestant and the will’s proponent so long as the proponent had a reasonable cause for contesting the will’s validity. This means that the contestant must demonstrate that they had enough evidence to warrant an inquiry into the legal sufficiency of the will.


The probate process in New Jersey is complex and can become even more complicated when you’re contesting the validity of a will. Therefore, it is essential to understand what constitutes a valid will, who can contest a will, and the grounds for contesting a will. These include improper execution, lack of testamentary capacity, undue influence, and fraud or mistake.

Even though the standard for overcoming the presumption of due execution is high, an experienced New Jersey probate attorney can guide you through the intricate process. Whether the will has been admitted to probate or not, you can challenge its validity. It’s important to act swiftly and meet the required timelines to maximize your chances of success.

Remember, the court may direct the estate to cover legal fees for both the contestant and the will’s proponent, provided there was reasonable cause to contest the will’s validity. By engaging a New Jersey probate attorney early on, you’ll be better prepared to navigate the probate system and safeguard your interests. If you have any questions about contesting the will or the probate process generally, contact us at the Chamberlain Law Firm through our website or by calling us at (201) 273-9763.

This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a lawyer about the specifics of your case, contact The Chamberlain Law Firm at (201) 273-9763 to schedule a consultation.

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