Your Lost Inheritance, and What You Can Do About It!

When you know in your heart that your loved one’s assets did not end up where they would have wanted, it can be frustrating and intimidating to right that wrong. However, the law is designed to make it financially possible for you to stand up for the person who can no longer speak for themself. 

Under the law of New Jersey, if you have a good faith and reasonable belief that a Last Will and Testament is invalid for some reason, the Estate of the deceased person (the “decedent”) is likely responsible to pay your legal fees for challenging a Will–even if you lose the case.  This is the rule of law because the potential “victim” of the wrongful conduct has passed away, and their story should not go untold just because members of their family do not have the resources to mount a legal challenge to a questionable Will.

In order to understand how and why these things can happen, and what to do about it, you must understand the basics of how a decedent’s assets pass to a beneficiary.

There are three basic ways an asset can pass when someone dies. 

• It can pass by contract (“Contract”), such as an insurance policy or “pay on death” account, where there is a written agreement designating a beneficiary. 
• It can pass by operation of law (“Operation of Law”), as when a house or financial account is owned by two people as joint tenants with a right of survivorship.
• It can pass by Will, or according to the intestacy statute if there is no Will. 

It is important to understand the three ways assets can pass because the decedent’s intentions can be frustrated in one or all of these categories.  And if the assets pass in one of the first two ways (Contract or Operation of Law), it will not matter what the Will says—the asset never makes it to the Will.  The asset will go where the contract directs or to the joint owner with survivor rights, whomever that person may be. (There are some exceptions for spouses who are disinherited).

Therefore, it is important to consider whether the decedent truly intended the assets to pass as designated in the insurance policy, or as described on a deed, or in their Will.  If you can show the directions in those documents are not the true intentions of the decedent, you may be able to right the wrong and have the asset go to the correct beneficiary.

There are three primary ways to challenge the directions in those documents. 

• You could demonstrate the document in items 1-3 above is defective in some way, either because it was not executed properly or was a forgery. This is perhaps the least common of the successful challenges
• You could show the deceased person was “incapacitated” or “incompetent.”  This means you would have to demonstrate the decedent’s mental abilities, at the time they made the decision, rendered them unable to understand their assets and who should receive them.  This is usually proven through testimony of people who knew the decedent, and with medical records of the decedent created around the same time the decedent made the challenged decision.
• You can allege “undue influence.” This is perhaps the most common allegation. It is common because many people seem to make critical decisions regarding assets near the very end of their life, when they are the most vulnerable and least mentally agile. Undue influence occurs when circumstances such as isolation, dependency, fear, intimidation or confusion make the decedent take action that does not express their own desires, but rather those of a person taking advantage of their vulnerability. If the decedent was physically, mentally or financially dependent on the person who received the gift or inheritance, it may actually be the influencer’s burden to prove any asset given to them was free of undue influence. This can be very difficult for the influencer to prove, especially when the decedent made decisions without independent professional advice from an attorney, accountant or financial advisor who was familiar with the decedent. 

If the wrongdoing occurred in one of the first two categories (Contract or Operation of Law), it can be more difficult, but still possible, to have the legal costs of the action paid by the Estate. However, if the challenge relates to the validity of a Will, the law is such that the costs of a reasonable good faith challenge to a Will is likely to be paid for by the Estate. Therefore, although there are always risks and difficulties in any litigation, you should not hesitate to speak with a lawyer if you believe your loved one’s assets did not pass to the people they truly intended. Righting that wrong may be more feasible than you think.

Richard M. King, Jr. is a partner at KingBarnes, a full-service Estate Law Firm handling Estate related matters, including preparing Estate Plans (Wills, Trusts, Living Wills, Powers of Attorney), administering Estates (filing for probate, distributing assets, and preparing certain tax filings or accountings) and engaging in Litigation (challenging wills, defending Fiduciaries, demanding accountings).  Among Richard’s published decisions is In re Macool, 416 N.J. Super 298 (App. Div. 2010), a leading case on Will challenges and the right of a challenger to have attorney’s fees paid by the Estate.

KingBarnes is a full-service Estate, Commercial and Real Estate Law firm with offices in Northfield, NJ, North Wildwood, NJ, and Cape May, NJ.