Can children from a first marriage contest a will?


Q. Can children of the first marriage contest a will? If they can, is it ever successful?
— Just asking

A. There are several scenarios when someone may contest a will.

In order to do so, a person must have “standing.”

Generally, a person has standing in two situations, said Adam Sandler, an attorney with Einhorn Harris in Denville..

First, the person would be the decedent’s heir by law and would inherit under the laws of intestacy if the will is declared invalid.

Second, a person could have standing if there was a prior will in which the person is a named beneficiary, and the prior will would be reinstated if the subsequent will was set aside.

Sandler said the laws of intestacy in New Jersey take blended families into consideration.

For example, if a decedent dies without a will and has descendants, such as children or grandchildren, who are not descendants of the surviving spouse, then several things would happen, he said.

The surviving spouse would inherit 25 percent of the estate – not less than $50,000 nor more than $200,000 – plus one-half of the remaining balance. Then the descendants from outside the marriage inherit the remainder of the estate, he said.

Sandler offered this example.

Let’s say John and Jane were married and had baby Joe. After John and Jane divorce, John marries Mary. If John dies intestate – without a will – then Joe stands to inherit a portion of his estate.

“Therefore, if John dies with a will, then Joe has standing to challenge the validity of the will,” Sandler said.

Practically speaking, of course, Joe should only challenge the will if he would inherit more under intestacy than under the will and he has a valid challenge justifying the will be set aside, Sandler said.

He said the four most common challenges to a will are lack of capacity, improper execution, fraud and undue influence/duress.

“Will contests can certainly be successful, but success largely depends on the facts and circumstances of the case,” Sander said. “For example, Joe would have a much harder time proving undue influence if John and Mary were similar in age and married for 30 years prior to John’s death than if Mary was 50 years younger than John and he had some level of dementia.”

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