A Suspicious Will or Trust Often Means It’s a Problem

This Page Discusses Claims of Undue Influence and Lack of Capacity to Understand the Last Will Before & After Death

Protect Your Inheritance Before the Assets of the Estate Vanish!

The fact that a person leaves behind a signed Last Will or trust does not guarantee that the estate will be distributed according to its expressed terms.  Frequently, legal heirs, as well as disinherited people, will object to even the best-made Wills and Trusts.  New Jersey law allows them that right… the right to object. There are many types of disputes involving a Last Will.  If claims of fraud, duress, or undue influence are alleged, a court will often allow family members, potential heirs, and beneficiaries to object to the Will or Trust as inaccurate or invalid in some way.

If a Will or Trust is contested and subsequently invalidated by a court, if there is a prior Will or Trust, the court will allow the earlier document to be probated instead of the invalidated Will whereupon the decedent’s estate will be distributed in the manner set forth in the earlier document.  Many people do not realize this. If there is no valid prior Will or Trust, then the decedent’s estate will pass through probate as if he or she died without a will at all, known as dying “intestate”, or dying without a will.

Be advised that many wills and trusts contain what is known as a “no contest” clause.  This clause is designed to discourage the challenge of a will by individuals unhappy with the terms of the document.  With a “no contest” clause, if you contest the validity of a will and you lose, you may be disinherited by the operation of the no-contest clause.  But these clauses are not always upheld.


Have you been accused of taking money from an elderly person while still alive, or influencing them to give you money prior to their death? Are you accusing someone of doing what I described in the proceeding sentence?

The incapacity of a person and the undue influence over a person(s) is the most frequent allegation made in lawsuits alleging fraud, conversion, and financial exploitation cases involving the gifting or transfer of money made by a living or now deceased person.

If the person was/is elderly, then claims of elder abuse or elder financial exploitation are often made because of alleged mental incapacity or undue influence.  These types of accusations are serious and can subject the accused person to significant criminal and/or civil liability, damage to his/her community reputation, and legal damage claims by the victim and/or his/her family. To learn more about Elder financial abuse and exploitation visit my web page dedicated to this subject. It’s written with you in mind, in simple and easy-to-understand English. (CLICK HERE)

What is Undue Influence and How Does it Apply to Defending Against Claims That a Gift Made While Alive or a Trust
or Will Signed By a Deceased Person Was Made With Lack of Capacity or Under Undue Influence, Conversions or Fraud



  • The exertion of influence over another that is significant (i.e., allegation(s) that the decisions of the deceased were not rationally made is not enough).
  • The influence must overpower the elderly or impaired person’s free will and compromise his or her thinking at the time the will/trust/power of attorney was signed or a gift was made.
  • This undue influence caused the elderly or impaired person to execute a will, trust, or power of attorney or make a gift that he or she would not have made but for the undue influence.

New Jersey case law describes undue influence as either, mental, moral, or physical coercion that caused the testator/donor or grantor (these words mean the impaired or vulnerable elderly person) to do something that is/was contrary to what the testator/donor or grantor would have normally done.

Often, it is alleged that because of undue influence, the will, trust or gift reflects the wishes and desires of the influencer (dominant person) not the person who signed the document or gifted his/her money.  These kinds of claims are challenging to both prosecute successfully and defend against.


When addressing a claim of undue influence, a plaintiff must obtain information about the beneficiary(s) (the person receiving the gift) or inheritance in a will contest case.  The evidence must clearly show motive or the opportunity for the beneficiary(s) to have the opportunity to exert undue influence over the elderly/impaired person at the time the gift was made.

Not all influences are “undue” influences. However, (this is an important point to be made and understood); to be “undue”, the influence must be such that it destroys or substantially compromises the elderly person’s free will to do as he or she pleases with his or her property.  Each case is governed by the particular facts and circumstances surrounding the execution of the will, trust, or the making of the gift and the actions taken by the parties who took part to determine if coercion or undue influence was exhibited.  The act of making a gift or the transfer of $$$ is not enough.

If you would like advice on the subject of undue influence, contact Fredrick P. Niemann, Esq. at (855) 376-5291 or email him at fniemann@hnlawfirm.com to discuss your case.  You’ll find him easy to talk to and confide in.  All consultations are attorney-client protected.

Defending a Gift Made to You or Another Person Against Claims That the Gift Was Made When the (Elderly
or Allegedly Impaired Declining) Person Lacked Capacity or Was Under Undue Influence and/or Fraud

The Elements of a Valid Gift

In New Jersey, a valid gift, whether made while alive or made under a Last Will or trust has four elements.  These elements are:

  • The person transferred or gave physical custody of something of value to another.
  • There was an intention by this person to make the gift to another.
  • There was/is an acceptance of the gift by the receiver of the gift.
  • The person who made the gift understood he/she was giving up legal ownership, physical possession, and control over the object of the gift to another.

Using a Power of Attorney to Make a Gift

If an aged or infirm person did not have the mental capacity to make a gift, the beneficiary of a gift can still allege that he or she was authorized to make the gift by virtue of the authority found under a comprehensive durable power of attorney which provides the agent with the explicit power to make a gift(s).  This financial power of attorney, if correctly written, can allow an agent to make gifts that the owner may no longer be able to legally make on his or her own behalf.

New Jersey courts have permitted guardians and Power of Attorneys to make gifts and engage in estate planning with a well-written power of attorney or certificate of guardianship.  To learn more about the use of powers of attorney to make gifts or undertake crisis asset planning, visit our page on Powers of Attorney and Health Care Directives.

The Burden of Proof When Defending Claims That a Gift(s), Trust and/or Will is Invalid Because of Lack of Capacity, Undue Influence, and Similar Grounds

The law presumes that an elderly or impaired person like any other person is competent and fully understands his or her decisions.  Whoever challenges competency has the burden of producing evidence to rebut that presumption.  This means the accuser must have credible evidence of incapacity to contest a gift or legal transfer of ownership.

Undue Influence and Will Contests

Generally, the burden of proving undue influence lies with the person challenging a gift and/or the provisions of a Last Will and Testament, unless the beneficiary qualifies as someone in a confidential relationship with the deceased and there are suspicious circumstances surrounding their relationship.

A confidential relationship includes not only a legal or fiduciary relationship, such as a guardian, power of attorney, conservator, principal and agent and trustee, but also a relationship involving trust and confidence (parent-child, brother-sister, financial advisor-client).

In the case of lifetime gifts, once a confidential relationship and suspicious circumstances are established, the burden of proof to validate the transfer/gift shifts to the accused who must then prove by “clear and convincing” evidence that there was no undue influence.  Remember, there are often legitimate reasons why an elderly or other person would want to make a gift (large or small) to you or others.  Just because you are or were in a confidential relationship does not legally negate the validity of the gift(s).

Defending Against Claims of Undue Influence, Unauthorized Gifts or Conversion of Funds Made While Alive   


What if someone has accused you of taking money from an elderly or incapacitated person?  What do you do?  First, I suggest you read this background information.

A Lifetime Gift is a legal term for gifts made while a person is alive.  Many lifetime gifts are viewed “suspiciously “.  As one Judge stated, “a person is not likely to give away while living what he or she can still enjoy.”

A showing of a confidential relationship and/or proof that the beneficiary dominated the thinking or the life of another person will satisfy the initial burden.  If that burden is met, then the burden of proving a legitimate gift/transfer is on the party who claims that the gift was valid.  An accused must produce “clear and convincing” evidence that there was no undue influence, and that the transfer was well understood by both the maker of the gift as well as the beneficiary.

If the donor of the gift (person who makes a gift) is dependent upon another person for help and assistance in life and he or she makes a “gift” of assets, investments, or things of great value, a presumption arises that the donor did not understand the consequences of his or her act or was subject to undue influence.

For Example:  When the receiver of the gift (called the donee) is the dominant person in the relationship, the burden is upon him or her to show by clear and convincing proof the gift made to him or her was the voluntary and intelligent decision of the donor.

In such a case, if a donor is physically or mentally weak and the donor’s savings are diminished and he or she is left without adequate support after the transfer, independent legal advice is required.

I am writing this email to express my gratitude for the moral support you have given me at the time I needed the most.  By the time I reached the courthouse all my nervousness had gone and I was very comfortable.  Thank you for the long ride.  I want to take this opportunity to thank everybody in your office who have been very kind and supportive.  Not worried about the outcome of the case, I thank GOD for placing me in the hands of a team of respectful excellent professionals who truly care. Thank you.
-Anju Aragam, Somerset County, NJ


My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey. Life is strange at times and the things that bring us together can be just as strange, if not more.

I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.

I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position. I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.

The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.

Keep up the good work Fred and thanks again.

– Mike Price – Plainfield, IN

Joint Bank Accounts and Undue Influence in New Jersey

With joint bank accounts, there is a different standard of proof than with other lifetime transfers because joint bank accounts are governed by the Multi–Party Deposit Account Act under NJ banking law.

Under this law, a joint account belongs to the parties in the same proportion as the dollar amount ($$$) deposited by each party into the account unless the terms of their agreement indicate a different intent or there is clear and convincing evidence that at the time the account was created, it was the intention of the parties that the survivor would become the sole owner of the account proceeds.

The Act creates a rebuttable presumption exists that the survivor of a joint account becomes the legal owner of the account upon the death of the co-owner.  I call this “winner takes all”, meaning the survivor of a joint account obtains 100% ownership upon the death of the co-owner.

Even if no undue influence is found, a court can look at all the direct and circumstantial evidence available to determine whether the decedent intended to create survivorship rights to the joint account named on the account.

What Action Can Be Taken Following Death to Defend Claims of a Wrongful Transfer or Gift?

Understanding the Procedural Issues Related to Defending or Prosecuting Testamentary & Trust Undue Influence Claims

An objector to a Last Will must file a written objection (a caveat) to a will prior to the will being offered for probate.  It is the filing of a caveat that prevents the surrogate from approving the probate of the will.  As the proponent of the will, you must then seek judicial approval of the will in the Chancery Division, Probate Part of the Superior Court of New Jersey in accordance with Rule 4:82.

If the will already has been admitted to probate by the surrogate, the contestant must file a verified complaint and order to show cause with the surrogate’s court seeking to set aside the probate judgment of the surrogate.

Filing a Caveat Against the Probate of a Last Will With the Office of the County Surrogate

Evidence Necessary to be Successful in the Defense of a Will and/or Trust in Litigation

The mental health and physical condition of the trust maker/testator/donor prior to and subsequent to the signature of a will or the making of a trust or lifetime gift must demonstrate the person’s legal capacity at the time the will/trust was made or the gift effectuated.  In other words, was the person of sound mind and understanding?

Statements made to witnesses prior to or subsequent to the creation of the will or trust or the making of the gift will demonstrate the nature and extent of the testator’s/donor’s relationship with the person who received the economic benefit of gifts made before or after death and the voluntary or involuntary nature of the transfer.


Fact witnesses – These witnesses are critical to demonstrate the physical and mental capacity of the decedent before the decedent’s death.  Usually, these witnesses are close personal friends of the decedent or family members.

Attesting Witnesses to a Will or Trust or Gift – Opinions of witnesses who were present at the signing of the will, trust, or gift are afforded a great deal of credibility and believability by the court as these witnesses were present and viewed the person during the signature session of the will, trust or gift.

Attorney as Witness – The attorney who prepared the will or trust is a critical witness as he or she observed the testator/donor from the time of the initial client meeting, through the drafting of the relevant planning documents and at the time of the document’s execution.

Treating Physician – A physician can qualify as both a fact witness and an expert witness.  The physician may testify to all examinations and treatment(s) including mediations provided to the decedent and all conversations with the decedent.

Decedent’s Hospital and Medical Records – These records may be introduced to demonstrate the mental capacity of the testator/prior to and at the hospital immediately prior to death.

The Use of an Expert in Your Case

Parties often use an expert witness(es) when litigating a trust or estate dispute. Even though many of these cases are tried before a judge rather than a jury, the evidence and proofs required in this type of litigation often compels the parties to enhance their case with expert testimony. When an expert is called upon, he or she is generally asked to offer an opinion on the following areas.

The standard-of-care expert: This witness testifies to whether the trustee, executor, fiduciary or defendant met a legal or custodial standard of care (or failed) to meet a standard of care under the facts of the case.

Investment expert: These witnesses testify on matters such as whether the fiduciary prudently managed the trust assets and/or whether a particular investment was sound or unsound.

Interpretation-of-instrument experts: These witnesses testify on matters such as the interpretation and meaning of trusts, wills, and other legal documents.

Competency experts: These experts testify to whether an elderly or disabled person was competent for the purpose of making a certain transfer, gift, etc., or whether the transferor was susceptible to the undue influence, duress or coercions of another person.

Treating physicians: These witnesses testify on matters such as whether the elderly or disabled transferor was competent and whether his or her mental faculties were diminished by physical ailments, cognitive deficits or the effect of certain medications.

Questioned document examiners: These experts testify about matters such as whether a person’s handwriting was forged and whether pages in a document have been improperly substituted.

Forensic accountants: These witnesses testify about confusing financial transactions, particularly if the documentation is incomplete or the case involves commingled funds.

Damage experts or appraisers: Certain types of litigation may require that a party establish the economic value of an asset such as real property or an interest in a closely held business, while others might require that a party establish damages based on lost rents or market appreciation. In certain circumstances, an expert such as an investment expert or a forensic accountant might also serve as an expert regarding certain types of economic damages.

Transactional experts: Expert witness testimony may also be helpful in circumstances where a trust or estate owns unique assets or engages in specialized types of transactions or businesses.  This expert will evaluate and offer an opinion on unique economic issues associated with the case.

Selecting Issues for Expert Testimony and the Admissibility of That Testimony

Fredrick P. Niemann Esq.

When considering whether to retain an expert, our firm often considers the purpose(s) for which the expert may be used. Some attorneys consider retaining experts as consultants at the outset of a case. A consultant can help evaluate the case, select theories of liability or defense, educate counsel, suggest avenues of investigation or discovery, and recommend testifying experts. Consultants can provide greater value when retained early in the case, but they are expensive and may be premature in many traditional probate litigation cases. When deciding whether to retain an expert/consultant to provide testimony in a certain area, the decision often involves weighing the potential benefit to be gained from an expert’s testimony against the cost of using that expert, i.e., both the monetary cost of that expert’s testimony and the potential cost to the case, which may involve considering factors such as the relative importance or unimportance of the issue that the expert will testify about. The bottom line….each case is unique and experience will often dictate whether an expert is needed and if so the timing of hiring a consultant/expert.

If undue influence or the mental capacity or incapacity of a decedent or living elderly/impaired person is at issue, then contact Fredrick P. Niemann, Esq. today, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  I’m easy to talk to and genuinely care about the outcome of your inquiry and case. 


Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest Probate Litigation Attorney