Is it Possible to Overturn a Will During the Testator’s Lifetime?

HNWGuardianship Law, Will Contest and Probate Litigation

Last Will and Trust

  • What if someone makes a Will without being of ‘sound mind’?
  • Can a court decide for someone that their Will is not in their best interest?

One of the requirements of a Will is that it be made by a person “of sound mind.”  Most of the time, we only see a loved one’s Will after they have passed away.  If that person made his or her Will while lacking the necessary mental capacity to do so, it is possible to overturn that Will provided the testator’s lack of capacity can be proven.  A Will made by a person not of sound mind is not valid.  This is true whether the testator is still with us or departed.  Sometimes, a person that has been adjudicated as mentally incapacitated will have purportedly made a Will while incapacitated.  This event usually signals elder abuse since the incapacitated person would probably not have the ability to comprehend a document as sophisticated as a Will.  Too often, family members who learn of a surprise Will assume that they must wait until the testator has passed away to ask a court to invalidate the suspect Will.

New Jersey courts have addressed this issue only a handful of times.  If an incapacitated person – someone the court has determined lacks the ability to make decisions for themselves – has made a Will, a court may set aside that Will if it is in the best interests of the incapacitated testator.  This is only possible if the person making the Will has been deemed legally incapacitated.

If the person making the Will is not incapacitated, a pre-death challenge to a Will generally will be disfavored by the courts.  New Jersey’s public policy presumes that adults are competent to handle their own affairs.  New Jersey therefore assumes that adults are able to correct any mistaken Will by revoking it or by changing it.

When a family member or close friend of a testator has strong doubts that the testator understood what he or she was doing in making a Will, but the testator has not been formally adjudged incapacitated, it is possible to ask the court to look into both issues at the same time.  The topic of guardianship in New Jersey is outside the scope of this article, but when a testator who has made a Will that does not reflect his or her true intentions because it is the result of elder abuse, undue influence or other exploitation, that testator probably requires the appointment of a guardian to prevent future abuse or exploitation.  A guardian is judicially given the authority and the obligation to act according to what is best for the incapacitated person.  If a court makes a determination that someone needs a guardian because they are incapacitated, the court may also set aside a Will at the same time if the Will is not in the person’s best interests.

When a court reviews whether or not the Will of an incapacitated person is in their “best interest,” the actual analysis the court uses is based on the 1972 trial-level case In re Trott where Pattie Trott was an elderly woman whose guardian designed a tremendous tax savings for her heirs if he could make certain gifts on her behalf during her lifetime.  In that case, the court determined that Ms. Trott’s best interests were to have her assets go to her family as gifts rather than the government as taxes.  In Trott, it was obvious.  In most cases, it is disputable what is in a person’s “best efforts” when they cannot speak for themselves.  Generally, a Will that drastically departs from a prior Will or a Will that excludes the testator’s loved ones, as two common examples, tend to most commonly be subject to invalidation according to the “best interests” standard.

In many Will contests, family members had at least a suspicion that someone close to the decedent during his or her lifetime was able to influence the testamentary process.  These families are often surprised – and disheartened – to learn that they could have repaired this situation during the testator’s lifetime.  In the instance where a testator is incapacitated or suspected to be incapacitated, there is a remedy in the courts if it is approached in the right way.  Hanlon Niemann & Wright, P.C., has been handling these types of cases for years.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

Written by Christopher Balioni, Esq. of Hanlon Niemann & Wright

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