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Volume XI, Number 55

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Defending Will Contest

The purpose of this blog is to discuss the first steps an executor should consider if a Will contest is filed either immediately before or after they are appointed an executor an Estate. When a Will contest is filed it is usually commenced by the filing of a verified complaint, which will set forth the rationale by which the party challenging the Will seeks to invalidate it. As discussed previously, the two main challenges will either be lack of testamentary capacity of the decedent, or undue influence asserted by a person over the decedent who is a beneficiary under the Will.

As the executor of the estate, your role typically would be to defend against any such challenge and to seek to probate the Will in which you are named executor. In furtherance of this process, there are some steps that should be taken immediately if a verified complaint is filed.

The first thing that an executor should do is to contact the attorney who drafted the Will. This individual will be a primary witness in defending the contents of the Will. After the attorney is contacted, it also makes sense to see if the witnesses to the Will are available. If so, they would also be important witnesses concerning the execution of the Last Will and Testament. Aside from these main witnesses, other witnesses may become relevant depending upon the nature of the challenge to the Will.

If the challenge to the Will is based upon a claim of incompetency by the decedent, the decedent’s treating physicians or other medical professionals are important witnesses concerning the competency of the testator at the time the Last Will and Testament was drafted. Further in this regard, relevant medical records of this same time period would also become important documentary evidence concerning the issue of competency. As an executor it is suggested that you reach out to these professionals and individuals after the commencement of a Will contest in order to discuss the matter with them and obtain relevant medical records.

If the challenge to the Will is based primarily upon a claim of undue influence, it becomes important for the executor to speak to persons who had close contact with the decedent at the time the Last Will and Testament was drafted and executed. These individuals would have first-hand knowledge with regard to any claim undue influence and whether such claim has any merit. At the same time, these witnesses should also have good knowledge concerning whether the decedent was competent at the time the Last Will and Testament was executed.

As an executor of an estate in the context of a Will contest, it is always better to be proactive in reaching out to the above referenced individuals as early as possible. This will help you determine the merits of any such Will contest, and perhaps, the best way to seek a resolution of same.

It is strongly suggested that you retain competent counsel to defend the estate, as well as your interests as an executor. It is only upon such retention that you can ensure that you are proceeding properly and that the wishes of the decedent are protected. Some of my previous blogs discuss in detail the concepts of undue influence and lack of capacity. The purpose of this blog is merely to provide quick guidance as to the first steps which should be undertaken should a Will contest be filed

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COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume XI, Number 19
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About this Author

Paul Norris, Stark and Stark Law, Probate Litigation Lawyer, Construction Attorney, New Jersey
Shareholder

Paul W. Norris is a Shareholder and a member of the Firm’s Litigation Group. Mr. Norris’ areas of practice include: Probate Litigation; Construction Litigation; Commercial Litigation; and Criminal and Municipal Court representation. Mr. Norris has an extensive and growing Probate Litigation practice, which concerns either defending, or initiating Will contests on behalf of beneficiaries and purported beneficiaries of an Estate as well as related litigation. He has both prosecuted and defended actions successfully in this regard, and also serves as a Court appointed...

609-895-7325
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