As executor, you will submit the deceased’s “Last Will and Testament” to the probate court. Typically, the will is accepted without challenge and you can check this step of the process off your list of executor duties. But what happens if someone challenges the will, arguing it is not valid because the deceased was not well, was under undue influence, etc., at the time it was written? We here at Executor.org asked Attorney Paul W. Norris, shareholder in the New Jersey-based law firm of Stark & Stark, to explain how to prepare to go before a judge when a will is challenged.
When someone wishes to challenge a Will, as executor or executrix you will be served with a verified complaint that seeks to contest the validity of the Last Will and Testament that was submitted to the probate court. (For the purpose of this blog, it will be assumed that as executor you gave appropriate notice to all heirs or potential beneficiaries of the estate that the Will was submitted to the probate court). The statute of limitations for contesting a Will varies by state. For example, in New Jersey it is four months for in-state residents and up to six months for out-of-state residents. Provided that a plaintiff (the person challenging the will) has complied with the applicable state deadline by timely filing the Will contest, the executor needs to take several initial actions in order to properly respond to the complaint in court.
The first step an executor should take is to contact the attorney who drafted the decedent’s Last Will and Testament. This attorney is an essential witness when seeking to defend the Last Will and Testament against a challenge. While this attorney may be involved in defending the will, they cannot be the sole attorney representing the estate as they are also what is called a “fact witness.” Should this attorney have other members in their office who can serve as defense counsel, then you may retain them to handle the defense. If not, then you will have retain other counsel who can represent the estate in defending the will. The good news for an executor is that the counsel fees you incur in defending the validity of the Will are paid by the estate. As such, an executor should not have to pay out of pocket for any counsel fees for the defense of the Last Will and Testament. The only time that an executor could potentially be exposed to paying counsel fees would be at the conclusion of the matter if it was determined that the executor acted in bad faith. Otherwise, all counsel fees incurred in defending the challenged Will are paid by the estate.
After you have retained an attorney to help you defend the will, the next step is to file an answer to the verified complaint. This will be drafted by the attorney and submitted to you for your review and approval.
The main arguments used to contest a Will are often that the deceased was subjected to undue influence, or was suffering from mental or physical issues which limited their ability to have sound judgment. Both of these arguments will require witness testimony, medical records, and perhaps expert witnesses, such as medical doctors, nurses and others. With the help of your attorney, you should start the process of locating any witnesses who may possess relevant knowledge with regard to the decedent’s health and mental condition at the time that the Last Will and Testament was created. A starting point would be the individuals who witnessed the execution of the Last Will and Testament. Furthermore, treating physicians, family, friends or other individuals who knew the decedent at the time that the will was executed are likewise essential. It is preferable at this early juncture in the litigation to start organizing these witnesses and obtaining their information.
After you have located witnesses who may have relevant knowledge, the next step is to start marshaling and obtaining documents with regard to assets of the estate. Typically, the litigation attorney will assist you in obtaining information related to the estate so that an informal accounting can be prepared with regard to the estate’s assets. Financial records may likewise become relevant, so it is wise to talk to your attorney about what information you should be gathering.
Defending a will contest is a daunting task which requires the consideration of a multitude of factors before going to court. The earlier you get an attorney involved to assist you with this process, the greater likelihood of your chances of success. As such, I suggest that you consult with an attorney early in this process in order to achieve the best possible result.