Legal Question in Wills and Trusts in New Jersey

Re: contesting a will?

You should probably contact an attorney now to review the situation and advise you. Who is the executor of the will? who is responsible for the costs of keeping the house while you occupy it? If you do not get expert advise now, you may end up losing a good deal of money.

I strongly suggest you get an attorney to review this now. If there is a challenge to the will filed in court (as I have done for several clients) then you MUST get an experienced attorney.

Please contact me for assistance. You may reach me at the address, phone and email given below.

Re: contesting a will?

Fairness is not a legal requirement for a will. Although it sounds as if your mother intended to be fair in rewarding your services to her, that does not determine whether the life estate will be honored. It is enough to know that she was competent to make a will and was not under undue influence.

Undue influence is a matter of proof on the part of the person challenging the will or the actions of the executor. Courts will not re-write the will just because someone is offended by its terms. The fact that you were not present when the will was signed is good; it tends to argue against undue influence. There would also have been witnesses to the signing who should be in a position to testify as to your mother's competence at the time.

In similar situations, I usually ask the testatrix a series of questions about the will at the will signing ceremony. Those questions don't deal with the details of the will (because the witnesses don't need to know the details) but they do elicit responses that show that the signer knows she is making a will and has considered its terms. When appropriate, I also include a "no contest" clause that has the effect of penalizing sour grapes litigation.

You need some expert help here. In the first instance, the lawyer who drew the will can help somewhat. He certainly has an interest in having it done correctly. The problem is that he might be a witness and therefore cannot represent either you or the estate as a litigator.

You did not mention who was named as the executor of the will. Things will be much easier if it is you or an independent party.

If I can be of further help to you, please call. You will find my contact information below.

Re: contesting a will?

I AGREE WITH BOB AND JOHN, BUT CONTINUE IN RESPONSE TO YOUR QUESTIONS. THERE IS NOW A WILL CONTEST BETWEEN YOUR SIBLINGS AND YOU, CONTESTING THE LIFE ESTATE PROVISIONS AND YOUR MOTHER'S COMPETENCY WHEN SHE MADE THE NEW WILL. COMPETENCY IN NJ IS VERY EASY TO ESTABLISH, UNLESS THERE HAVE BEEN SERIOUS MEDICAL PROBLEMS (PHYSICAL OR MENTAL) AT THE TIME THE WILL WAS MADE. SINCE YOUR MOTHER KNEW HER FAMILY MEMBERS, PROVIDED FOR ALL OF THEM (EVEN IF NOT IN THE WAY ALL OF THEM MIGHT DESIRE) AND KNEW THE CONTENTS OF HER ESTATE, THAT IS THE MINIMUM TO ESTABLISH HER COMPETENCY. HOWEVER, THERE IS STILL THE ISSUE OF UNDUE INFLUENCE (SINCE YOUR MOTHER TREATED YOU MORE FAVORABLY THAN THE OTHERS), WHICH WILL REQUIRE A HEARING AND A JUDGE'S DETERMINATION. YOUR MOTHER MAY HAVE HAD GOOD MOTIVES TO REWARD YOU FOR YEARS OF ASSISTANCE, BUT YOU ARE SILENT ON THE DETAILS OF THE LIFE ESTATE, WHICH BEARS ON THIS ISSUE. DO YOU HAVE ANY FINANCIAL RESPONSIBILITY FOR THE CARE AND UPKEEP OF THE HOUSE WHILE YOU OCCUPY IT? WHAT COSTS, IF ANY, MUST YOU PAY? HOW DO THINGS LIKE TAXES, INSURANCE, REPAIRS, REPLACEMENTS GET PAID? BY WHO? HAVING A LIFE ESTATE IS SOMEWHAT LIKE A LEASE AND THERE SHOULD HAVE BEEN DETAILS SPELT OUT ON WHAT COSTS YOU BEAR, AND WHAT COSTS ARE SHARED BY ALL OWNERS. FAILURE TO PROVIDE FOR THIS MIGHT CONSTITUTE NEGLIGENCE OR MALPRACTICE BY THE ATTORNEY WHO DREW THE WILL. I HAVE PREPARED MANY WILLS PROVIDING FOR THIS TYPE OF SITUATION AND ALWAYS COVER THE ON-GOING COSTS TO BE PAID BY THE LIFE TENANT AND/OR THE RESIDUAL OWNERS. WITHOUT SEEING THE ACTUAL LANGUAGE OF THE WILL, I CANNOT EXPRESS AN OPINION ON HOW THE ISSUE MAY BE RESOLVED. DID YOU INCUR EXPENSES PERSONALLY WHILE CARING FOR YOUR MOTHER? IF SO, AND YOU WERE NOT REPAID, THAT FACT MIGHT BE IMPORTANT IN THE CONTEST AND ITS RESOLUTION. FEEL FREE TO CONTACT ME DIRECTLY GIVING ME MORE INFORMATION.