Full question:
After attempting to probate a will it was returned to me after a caveat was filed claiming undue influence. I was told by the surrogate judge I need to file a motion to show cause in Superior Court.With a legitimate will and no basis for undue influence claim can I do this myself? The surrogate Judge says I can. Thanks
- Category: Wills and Estates
- Subcategory: Will Contests
- Date:
- State: New Jersey
Answer:
A show cause order is an order of the court, directing a party to a lawsuit to appear on a certain date to show cause why the judge should not issue a specific order or make a certain finding. It may be filed by an individual acting pro se, without an attorney.
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent.
A bequest in a will is typically considered a gift that may be freely revoked by the will maker. In some cases, a person may make a legally enforceable contract to leave a person a bequest in a will in exchange for services provided or other value received. I suggest you contact a local attorney who can review all the facts and circumstances involved.
The process of challenging the will can be quite complicated as it requires careful examination of the facts surrounding the execution of the will. It may be beneficial to discuss the particular facts of your situation with a local attorney experienced in probate matters.
For further discussion, please see:
http://www.acwoman.com/articles/1100/1/Will-Contests-How-Do-They-Work/Page1.html
http://njprobatelitigation.njlawfirm.com/
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
