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Overview of the grounds for challenging a will or trust

In many cases, it is in a New Jersey resident's best interest to make a will as part of her estate plan. One of the biggest risks in doing so, however, is that a will must go through the probate process and, during that process, can get challenged in court.

It should be noted that other estate planning documents, like trusts, can also have their validity challenged by an angry family member via what can still appropriately be classified as probate litigation, as these sorts of claims work in the same way even when the document in question does not technically go through probate.

Perhaps the most important thing a person can do to avoid a challenge to his will is to make sure that the will, or other document, meets this state's legal requirements. For a lot of reasons, courts do not give a lot of leeway on these requirements, even though others might see them as technicalities.

A will that was not properly executed, for example, can be just the loophole a disinherited family member needs to strike the will down in favor of a more favorable distribution of the estate.

Another common reason for probate litigation is when the person's legal ability to make a valid will is in question. There are a number of grounds a person can use challenge validity on this basis. For instance, the challenger can allege fraud, that is, outright dishonesty on the part of someone who stands to benefit from the will.

In other cases, the challenge can be on the basis that a person legally told the truth but was clearly taking advantage of a vulnerable person, a case of undue influence.

While things can be done to prevent challenges to one's estate plan, in some cases, litigation simply cannot be avoided. For instance, a family member might be so upset that he or she will allege anything to get a will set aside. In these sorts of cases, having experienced counsel to represent one's interests can be very important.

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