RED FLAGS INDICATING A POTENTIALLY INVALID WILL IN NEW JERSEY
When considering whether to contest a decedent's Last Will and Testament, an individual should consider whether red flags might be present, which may point to a successful basis to challenge a disputed Will. These red flags tend to be the most frequently encountered issues concerning improperly drafted and/or executed Last Wills and Testaments.
One often encountered scenario is when a decedent executes a new Will near the end of his/her life which changes their previous estate plans. When a Will is drafted near the end of a person's life, a strong consideration should be whether this individual possessed sufficient mental capacity to execute the document. As such, whenever a will is drafted within the last few months of a decedent's life, these issues should be carefully reviewed.
Another scenario is when an individual assumes control of the decedent's finances and health care, and shortly thereafter, a new Will is drafted. Therefore, whenever there is a person who may have a power of attorney or when an individual seems to have an overmastering control over a decedent, any newly drafted Will should be carefully reviewed for validity.
A Will might also be challenged if it was executed at the time the decedent's mental capacity was highly questionable either due to a degenerative condition or an intervening event that led to the mental incapacity.
A particularly troublesome scenario that appears at times is where the decedent's attorney or the drafter of the Will becomes a substantial beneficiary under the new will that was drafted.
It is also not uncommon to encounter a Will that has issues with its content or the manner in which it was drafted and executed. Aside from issues surrounding the creation of a Will, technical issues may arise if the Will does not satisfy the relevant statute concerning the necessary formalities.
The final potential issue that merits discussion involves when a drastic change is made concerning the decedent's estate plans with no discernable reason as to when the changes were made.
As discussed above, these potential red flags are not an exclusive list of the legal basis to challenge a Will; however, it involves the most typical scenarios encountered when a Will is challenged.
For further information, contact Kevin at kevin@kmckernan.com or 718-317-5007