Grounds for Challenging Wills
- Fraud & mistake
- Elective share
Cases of fraud and mistake occur where the testator mis-identifies the instrument, such as where he or she signs an earlier draft of a will, or erroneously assumes the existence of a material fact, such as the death of a child, whether or not the error is caused by the agency of a third party. In cases of this type, courts sometimes impose a constructive trust upon the property distributed as a result of the error.
In New Jersey, the surviving spouse or domestic partner is entitled to an elective share of the predeceased spouse’s or partner’s estate. The applicable statute appears at N.J.S.A. 3B:8-1 et. seq. The elective share can be waived by a “written contract, agreement or waiver, signed by the party waiving after fair disclosure.” [N.J.S.A. 3B:8-10] The elective share right is personal to the spouse and, therefore, must be exercised during his or her lifetime. In addition, the parties may not have been living separate and apart at the time of the decedent’s death. The complaint must be filed within 6 months after the appointment of a personal representative of the decedent’s estate. Notice of the hearing must be given to “persons interested in the estate.”
The elective share is one-third of the decedent’s “augmented estate,” which is:
[t]he probate estate, less funeral and administration expenses and provable claims plus the value of certain inter-vivos and non-probate transfers to others, plus the value of certain inter-vivos and non-probate transfers to the surviving spouse, including life insurance proceeds and pensions payable to the spouse but not to others.
[In re Estate of Cole, 200 N.J. Super. 396, 402 (Ch. Div. 1984)]
Note that the entitlement is needs-based, so if the survivor has substantial means of his or her own, there will be no right to an elective share:
[T]hus, the elective share is to be satisfied first out of the survivor’s independent wealth and out of the decedent’s bequests and non-probate transfers to her. If they are not sufficient, liability for the balance is not limited to residuary legatees or probate estate beneficiaries. The burden is required by N.J.S.A. 3B:8-18(c) to be: ‘equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.’
[Id. at 405]
However, only original transferees from, or appointees of, the decedent, and their donees (to the extent they have the property or its proceeds) are liable for contribution to make up the elective share. [N.J.S.A. 3B:8-19]