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Challenging a Will on Competency Grounds

It's a fact of life that at some point, you may be named in a loved one's will. You may imagine that you'll be left with a portion or share of that person's estate, a "piece of their pie." But what if your share is smaller than you thought - or it there's nothing at all? If so, there's a possible legal remedy. You can object to the will, or in legal terms, contest it. Here are some questions you need to ask:

Are you contesting the will for a reason recognized by law? In New Jersey, a will cannot be contested just because you are dissatisfied with it. A will can only be contested by challenging either: 1) the mental competence of the person who made the will, at the time the will was made or 2) the will itself.

If you are challenging the mental competence of the maker, or testator, there are two points that are often made. One is that he or she did not have the capacity to make the will - was not of sound mind at the time it was done. Here, evidence like medical records, witnesses and experts are likely to be used by each side to the contest. It can also be claimed that the maker of the will was under undue influence - was being improperly influenced in creating the will by someone who received a portion or larger portion of the estate than he or she would otherwise received. That influence can be anything from financial to mental.

Can you contest the will? Before you even attempt to contest the will, you must make sure you are part of the limited group of people who have the right to do so. You must have a financial interest in the estate. This means you are either: 1) named in the will itself or 2) someone who would have inherited part of the estate if the person died without a will. Often, the second group can be either a family member or someone who has such a close relationship that receiving some economic or estate benefit from the deceased would be expected.

Do you want to pay the costs? It is important to ask yourself whether you want to pay the costs of legal process. Executors of the will, those defending the will, can use the estate's assets to defend it, whereas you will have to use your own funds to cover legal costs to contest the will.

What will happen in the process? If you do decide to contest the will, you'll need to know about the process. A will is presented for probate-the legal process of proving the validity of a will- in the Surrogate's Court after the will maker's death. The paperwork to contest it should be filed as soon as possible, even before the will is presented for probate. The Court will likely suggest mediation initially, but if both parties do not agree to it, the matter will be decided by a judge - there is no jury.

There are a lot of things to consider in trying to get your "fair share." It can be costly both financially and emotionally. But if you're even thinking about it, you should talk to an attorney immediately, because there are time deadlines to get started. With assistance from Angela Yu, Rutgers School of Law & Rutgers Business School.

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