Preventing a Questionable Last Will and Testament from being Probated

Occasions arise from time to time when a person dies leaving a purported Last Will and Testament that is suspect for various reasons including but not limited to that at the time of execution the decedent did not know the nature and object of his or her bounty, the document comes into existence as a result of fraud, duress, or undue influence; the Will is a forgery or the Executor named therein is incapable of carrying out the obligations, duties and responsibilities of his office.

If a person is an interested party, pre-probate procedure if timely instituted   is available to stop the Last Will and Testament from being probated.

The procedure involves the  filing of  a “caveat” with the Surrogate of the County where the decedent died and, if necessary,  based on specific circumstances, in Counties where there is a possibility the Last Will and Testament might be offered for Probate.

Succinctly stated,  a “caveat” is a formal notice filed by the interested party with the Surrogate(s) or an appropriate court official(s) requesting the postponement of  institution of any probate proceeding until the filer is heard.

Under the current Rules of Court once a caveat is filed the Surrogate is powerless to act.

By  utilizing this type of litigation tool the person  offering the Last Will and Testament  is forced to prove to a Superior Court Judge  that the purported document is indeed valid and meets legal requirements.

Timing is an essential element. The caveat should be filed within 10 days of the decedent’s death or alternatively it must be filed before the Last Will and Testament is probated.

Remedy in the event a named Executor fails, refuses or neglects to timely offer the decedent’s Last Will and Testament for Probate.

Neither the existing Court Rules of Civil procedure nor any State Statute specifically delineates a time certain in which the Last Will & Testament of a decedent must be offered for probate.

In order to compel the probate of a Last Will & Testament by way of Judicial intervention there is no magical checklist or formula required. However, in general, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:

• There was a demand that the Will be probated,
• Failure to probate the Will exposes the Estate to unnecessary risks, liabilities and losses, 
• The size of the Estate and monies involved requires immediate administration, 
• The heirs have been deprived of the fiduciary duties owed to them,
• Due diligence is immediately required,
• And that equitable waste is occurring with respect to the assets.

OBJECTION OF APPOINTMENT OF EXECUTOR/ADMINISTRATOR.

Concomitantly, when the facts apply, the heirs may also object to the person named in the Last Will and Testament from serving as the Executor.

Generally, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:

• The named person is unfit, incapable, incompetent and unsuitable as and Executor or in any other fiduciary capacity;
• The named person’s misfeasance, nonfeasance, failure to perform his/her fiduciary duties has been and is to the severe detriment of the heirs, creditors and the Estate in general;
• There is no viable reason justifying his/her dilatory, slow, tardy and remissful
• behavior; 
• The delay in probating the Will is for personal profit and gains;
• And that  the delay in probating the Will is revengeful, malevolent and spiteful.

When dealing with estates, it is imperative that an individual, beneficiary or interested party, be fully apprised of all legal parameters and consequences applicable to that specific estate.