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The Initial Hearing During a Will Contest

Once a party has decided to contest a Will, the question then becomes what is the next step in this process. The first pleadings that Plaintiff’s counsel prepare for the Court are a Verified Complaint, as well as an Order to Show Cause.

The Order to Show Cause hearing date would be the first hearing at which the Court would hear testimony concerning the disputed Will and Plaintiff’s claim to invalidate this document. It is also common at the return date for the Order to Show Cause for the contesting party to seek a preliminary injunction preventing the distribution of Estate assets pending the resolution of the matter on its merits.

In determining whether the Court should grant injunctive relief during at the initial hearing date, the Court will consider a multitude of factors.

The Court will first consider whether injunctive relief is necessary to prevent irreparable harm to the party filing the Verified Complaint. In addition, the Court will also consider whether the Plaintiff has a reasonable probability of succeeding on its claims, whether the Plaintiff may suffer a greater hardship if their application for an injunction is denied as compared to the Defendant, and whether it is in the public’s interests to grant the restraints.

The Court will often review the facts presented to it and perform a balancing test to determine whether injunctive relief is appropriate at the initial hearing. Recent revisions to the injunctive relief standards have leaned more favorably towards granting injunctive relief in order to preserve the status quo pending a resolution of the matter. Although the first hearing date during the Order to Show Cause is an important one, it is merely the beginning of the Will contest.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume VII, Number 12


About this Author

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

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...