Objecting to the Probate of a Last Will

Objecting to the Probate of a Last Will Starts by Filing a Caveat With the County Surrogate or with the Superior Court

A will is a document that directs how a person’s property is to be distributed upon his/her death. The person creating the will is often referred to as the “testator”. The person responsible for administering the terms of the will following a death is called the “executor”, or if there is no Last Will, an “estate administrator”.  A will creates a fiduciary relationship (meaning a relationship of trust and fair dealing) between the executor and the beneficiaries named in the will.  A “beneficiary” is a person or organization entitled to receive something of value under a decedent’s Last Will.

“Probate” is a process where the Will is declared legally valid and therefore enforceable by the County Surrogate.  Your County Surrogate has the authority to approve the Last Will which gives the executor the lawful and controlling decision-making over the decedent’s estate. When there is no Will, the Surrogate issues “Letters of Administration” to a person who is appointed by the probate court to handle the administration of the decedent’s estate.

An application to probate a Will and to approve the appointment of the Executor named in the Will can be made only after ten (10) days following the death of an individual and must be filed by the Surrogate’s Office of the County where probate is proposed. This 10-day delay between death and probate is designed to permit enough time for any person with an interest in the estate to file an objection or “caveat” to the admission of the Will. This objection to the probate of a will generally means the authenticity or validity of the Will is being challenged in a “Will Contest”.

The Surrogate’s Court has no jurisdiction to act when: (1) a caveat has been filed before entry of a judgment of probate; (2) a doubt arises on the face of a will or a will has been lost or destroyed; (3) an application is made to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3; (4) an application is made to appoint an administrator pendente lite or other limited administrator; (5) a dispute arises before the Surrogate’s Court as to any matter; or (6) the surrogate certifies the case to be of doubt or difficulty.

If a person dies owning (any) property (i.e., home, real estate, bank accounts, annuities, CD’s, savings accounts, IRA’s, etc.) that, if alive, would require a signature to a document (as an example, a check, title to a car, deed to real estate, stock certificate, etc.) or to liquidate, transfer ownership or otherwise disposed of such property, then probate is required in New Jersey. It is at this stage of probate that the executor becomes highly involved.

When the Will is approved for probate, the Surrogate will issue “Certificates of Executorship” to the Executor which will enable him/her to act with the same power the deceased would have had but for his or her death over his or her property (i.e., cash checks, withdraw money from bank accounts, transfer property and real estate, etc.).

If there is no Will, a Surrogate will only issue a Certificate(s) of Administration to an estate representative after being appointed by a Superior Court judge whereupon the administrator will become legally empowered to act on behalf of the estate and beneficiaries entitled to an inheritance under New Jersey laws.  The Certificate(s) of Administration is the legal equivalent to a Certificate of Executorship granted to the Executor named under a Last Will.

The Superior Court, Chancery Division, Probate Part maintains jurisdiction over all contested and non-contested matters relating to wills, trusts and estates. The Superior Court has full authority to hear and determine all controversies involving wills, trusts and estates and full authority over the accounts of fiduciaries. The court has the jurisdiction to hear disputes before the surrogate or the surrogate’s court and to review any order of determination or judgment of the surrogate.


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Is a “No Contest” Clause in a Last Will Enforceable in New Jersey

Many clients want to avoid challenges to their Last Will and Trust.  They are generally concerned about some family member or other predator who is “all about the money”.  They’re thinking their Will should include a no-contest clause to protect their estate and named beneficiaries from greedy or unstable siblings, other children, etc.  Also known as an in terrorem clause, this clause specifies that any interested party who contests an estate plan automatically gets nothing. This no contest clause may or may not be enforced or found unenforceable whether included in a Last Will or a Trust.

Unfortunately (or fortunately, depending upon your position) while a no-contest clause can be enforced, generally the courts do not uphold them in New Jersey. Even when a no-contest clause is valid, it does not apply to someone who is disinherited from an inheritance; it applies only to beneficiaries who challenge the will because they don’t like what it says.

One suggestion to reduce the threat of a challenge to a Last Will is to create a trust which is a private document.  A trust does not need to be filed with the Probate Court. Because it is not a public record and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning.  He/she deals with these kinds of issues/problems all the time and can suggest strategies to minimize the chances of troublemakers creating problems, or being successful in a will contest if they should take legal action after your death.

Standing to Contest a Will

A party contesting a Will must have what is known as “legal standing” to challenge the Will. To have “legal standing”, a person must be injured, or “aggrieved” by the probate of the Will he or she is contesting in Court. Simply stated, it means a person with legal standing is making an economic claim for damages because of some defect in the Will, or that some act was done to the decedent by others, or some condition or confusion in the mind (or body) of the decedent mistakenly caused the person to sign the Will being presented for probate.

Watch This Video Introduction to New Jersey Probate Laws

Procedural Issues in a Will Contest Case

A Will contest can be initiated in one of two ways. First, as previously discussed, a contestant can file a “caveat” with the County surrogate. A “caveat” is a formal notice which prevents the approval and legal admission of a proposed Will to probate and the appointment of a personal representative to the estate, who is known as the executor or executrix. To be legally effective, a caveat must be filed with the surrogate in the county in which the decedent was domiciled within 10 days after the decedent’s death. However, a caveat can be filed at any time after death but prior to the filing of the Will proposed for probate.

If a caveat is filed prior to the entry of a judgment of probate, the Surrogate’s office loses jurisdiction over the will and may not act. If a caveat is not filed before the Will has been admitted to probate, the contestant must file a Verified Complaint and Order to Show Cause with the Superior Court seeking to set aside the probate of the Will. The verified complaint and Order to Show Cause must be filed within four months after probate by a New Jersey resident, or if the aggrieved person resides outside of New Jersey within six months after probate of the Will. These deadlines may be extended by the Court upon good cause, the absence of prejudice, and the interests of justice.

Filing a Caveat Against a Last Will:  A Video Introduction

Defending Estates Against a Last Will or Trust Challenge

No matter what anyone else may tell you, all of us have the right to disinherit anyone we want from our will, the sole exception being a spouse without a pre-nuptial agreement (but even then they can only claim an “elective share”.

Often the person omitted from the estate claims that there is something wrong with the Last Will, that its creator was too old, too sick, too vulnerable to the undue influence of another and/or they were tricked into making the will. The reasons go on and on. Then they look for “legal technicalities” to undo the will. A forged or suspicious signature, absence of two (2) attending witnesses, handwritten notes on the original document. 

Oftentimes, their real reason for challenging the will is the fact they are not getting what they want (or anything), and they will make claims in hopes of getting a settlement out of the estate. It’s a strategy I see often used.

What happens is that the attorney takes the estate case on a contingency basis, meaning they get a share (typically one-third) of whatever the claimant collects. They never plan to go to trial. An executor will feel threatened by the challenge and offer a settlement (small or large) just to make the adversary go away. Depending upon the merits of the case, and as your advocate, we will either engage in a dialogue with the objector or fight the claims and take them to trial. When the fees start to rise and they encounter real opposition, many claimants lose their combativeness and either give up the fight or settle for a much more reasonable amount.

If the objections are not withdrawn, we may file a Motion to Dismiss, which has the effect of throwing the case out of court without a trial because there is not enough evidence to successfully win at trial. We may recommend this course of action if we think it’s in the best interest of the estate so you can close the estate and distribute assets to their rightful beneficiaries with a small settlement or no settlement at all.  We will explain any recommendation of ours and lay it out to you in plain terms.

Filing a Lawsuit in the Superior Court, Chancery Division, Probate Part

All actions relating to estates of decedents, including a will contest; challenges to trusts, guardianships, and custodianships commence in the Superior Court, Chancery Division, Probate Part, by filing the required legal papers with the Surrogate of the county where the case will be decided.

Assuming the judge signs the order to show cause, the document(s) are served upon all interested parties. An interested party(ies) means anyone (everyone) that may be impacted by the decision of the court and may include not only persons named in a decedent’s will, but his/her heirs at law and possibly even persons named as a beneficiary under a prior will(s), superseded by the most recent will being contested. Copies of the signed order to show cause, verified complaint and any accompanying certifications of fact witnesses must then again be served upon all interested parties in the litigation. Service can be made by mail, publication in a newspaper, or as the court directs in the order to show cause. Generally, service is made by mailing the documents by regular and certified mail, return receipt requested. AFTER all interested parties are served with legal papers, the case then proceeds in the ordinary course of any judicial proceeding under the case management of the judge assigned to the case.

Defending Pre-Death Gifts

We all have the right to make gifts during our lifetime. Yet those gifts can often be challenged after the person who made them dies.

The principal grounds for challenging a gift are; fraud, duress, lack of capacity, forgery, and undue influence. I discuss these grounds extensively on many of the pages found on this website. Look at the Table of Contents for more information.

Claimants often allege the decedent “did not really intend to make the gift” and that they were taken advantage of. While the burden is on the claimant(s) to prove their case, we’ll help you disprove the claimants’ arguments by demonstrating that the donor made the gift(s) of their own free will. Although a few of the stronger cases can settle, we have the capacity to successfully defend against most challenges to pre-death transfers of assets.

Defend Beneficiary Designations

Just with a Last Will and Trust, individuals are entitled to name whomever they want as beneficiaries of their assets, including stock and bank accounts, CD’s, annuities, and real estate, for example. By operation of law, the assets pass directly to the beneficiary, without going through probate and the Surrogate’s Court. Beneficiary designations are often challenged by those not named as a beneficiary or who receive a lesser share of the probate estate than expected. Often the claim is that the owner who named beneficiaries was deceived and/or misled prior to signing the beneficiary designation form, or that they did not know what they were signing. From my experience, these cases can be the most challenging because often the allegations are true but the law requires that these claims be proven by credible and substantial evidence.

We can posture the case to show the court that the person who created the beneficiary designation did so of their own free will, knowingly, purposefully, and without threats and/or undue influence. We closely analyze claims of mental incapacity, fraud, and duress, to uphold the integrity of the decisions to name a beneficiary outside of probate through the lawful means of beneficiary designations.

Contesting a Will Before the Death of Its Maker

An intriguing issue has evolved as to whether a Will can be contested before the maker of the will has died. Traditionally, the Courts in New Jersey have not permitted a pre-death Will contest and litigation, reasoning that a Will contest is premature until a person dies. The thought is that because the testator (the person who makes and signs the will) may revise the Will before death, the Court does not want to waste time and resources on an issue that may very well never come to pass. In reality, such contests are being permitted more regularly but are still disguised by pleadings and captions using another name, i.e., guardianship, conservatorship, fraud, etc.

Do you feel that a Will Contest case should be brought to Court?

Are there problems surrounding the validity of a Will?

If you are the executor of an estate or trustee of a NJ trust under attack by beneficiaries or omitted beneficiaries, or if you are a beneficiary or omitted beneficiary of a deceased family member and believe that the Last Will & Testament or trust was changed because of undue influence, fraud, the deceit of another (or others) or the lack of competency at the time of its signature, then contact Fredrick P. Niemann, Esq. today, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.



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