Contesting a will is a complex process. Doing so successfully generally requires an understanding of estate law as well as the circumstances surrounding the deceased’s wishes and mental state at the time the will was executed. Individuals may contest a will based on many factors, one of the more compelling being the deceased’s lack of capacity. If you wish to contest a loved one’s will, you need skilled legal representation. Reach out to a Sussex County will lawyer for more information today.
What is Lack of Capacity?
A testator (the individual who creates the will) can lack capacity if they do not have the mental ability to make a valid will or agree to the terms. This often happens when an individual’s health is in decline, they are elderly, or they have an illness that impacts their cognitive functioning. A testator lacks capacity when they cannot understand what they are signing or the impact of doing so.
In New Jersey, an individual must be of sound mind to create a valid will. This can include the following.
- Understand that they are creating a will and the significance of the document
- Understand who their beneficiaries are and how their decisions may affect them
- Be capable of making rational decisions regarding their estate and its distribution
How Can I Contest a Will Based on Lack of Capacity?
To successfully contest a will in New Jersey based on a lack of capacity, you have to demonstrate that the testator did not meet the above criteria at the time they executed the will. Take the following steps.
- Consult with an attorney: Explain the situation to an experienced and trusted probate attorney, preferably one who specializes in contested wills. Their guidance will strengthen your case and help you understand the necessary steps and procedures.
- Gather evidence: With the help of your lawyer, collect all relevant documents and information that support your claim. This can include medical records, written communications, expert testimony, and affidavits from people who were familiar with the testator’s mental state.
- File a caveat: File a Caveat in the county Surrogate’s office. This document will explain why you want to contest the will and delay the executor from being appointed and beginning the probate process.
- Attend hearing: A hearing will likely be scheduled, either using mediation or in court, and all individuals listed in the will can attend. The hearing provides all interested parties with the opportunity to ask questions, present evidence, and state objections.
After reviewing the evidence presented, the probate court will make a ruling. If the will is deemed valid, it will continue being distributed as intended. If the court rules in your favor, however, the will could be considered invalid. In this case, the estate will be distributed in accordance with a prior valid will or according to state law.
