The time to investigate whether or nor to challenge a Will: before it’s too late

I’ve written here about how little time a litigant has to challenge the probate of a Will in New Jersey. Under Rule 4:50-1, in almost all circumstances, an action to set aside the probate must be brought within 4 months of the Will being admitted to probate, or within 6 months if the plaintiff doesn’t reside in New Jersey.

In civil litigation, it’s not at all uncommon to discover facts that support a claim you didn’t know about when the case was filed. Pleadings are routinely amended to include new claims, and while I’ve never actually seen it happen, there are circumstances where the Rules of Court allow a party to add a new theory or claim even after all evidence has been presented to the judge or jury.

A colleague asked me recently whether facts discovered in the course of litigation could allow for a Will challenge even after the 4-month period had run. (This was, I’m embarrassed to report, pretty much idle chat. Her actual case involves a decedent’s estate, but there’s no question as to whether or not probate is going to be challenged.)

I’ve never litigated the issue, and I was curious enough to spend a little time scratching around, I cannot find a single case where newly discovered facts were sufficient to allow a litigant to challenge probate after the period set out in the Rule. In fact, the few reported cases that touch on the question fall squarely against an expansion of time for newly discovered evidence. Where a plaintiff has alleged that the facts supporting a claim of undue influence, waste, or lack of testamentary capacity were only discovered after the time to challenge probate had run, the action to set aside probate was barred nonetheless.

The message for the practitioner is clear: if there is any hint that a probate challenge might be appropriate, the matter requires speedy investigation and timely filing.

How late can the probate of a Will be challenged?

“In delay there lies no plenty.”

In estate litigation, there’s rarely reason to delay, and often every reason to act quickly. Once probate has been granted, assets can be liquidated, property transferred, and all manner of action can be taken that can’t easily be undone.

It’s one thing to say that it’s generally prudent to act quickly to challenge the probate of a Will. In New Jersey, it’s not merely prudent, it’s required. The statute of limitations for the challenge of probate is one of the shortest in New Jersey law: the action must be commenced within four months after the Will is admitted to probate (or 6 months if the person bringing the action lives out-of-state).

This is an extraordinarily short limitation; typically, the statute of limitations for an action is no shorter than two years. And casual research will not reveal the 4-month limitation; there is no “statute of limitations” for these actions described in the New Jersey statutes.

The limitation is in the R. 4:85-1 of the Rules of Court. It’s well-settled that the four-month limitation described in the Rule operates as a statute of limitations; see, e.g., Marte v. Oliveras, 378 N.J. Super. 261 (App. Div. 2005). The limitation is relaxed to allow an additional 30 days on a showing of good cause under R. 4:85-2, and in certain circumstances can be relaxed further by the court, but if you want to challenge probate as of right, you have four months only to do so.

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One of the reasons this rule comes to mind is that I was speaking with fellow estate lawyer last week and she said that, in her experience, many families aren’t ready to move from the emotional loss of a loved one to the business of handling an estate for 7 months. I’m not sure I’ve given enough thought to the question to say, but it’s certainly true that some families take longer than others to think about the business of handling estate matters. Four months is not long, but that’s all the rules afford.

What is the standard for temporary restraints in estate litigation?

At the beginning of estate litigation, it’s not unusual for a party to apply for temporary restraints, usually in the first filing with the court. Temporary restraints are akin to what are more commonly called injunctions, and as the name suggests the relief is temporary pending further review by the court.

The typical case calling for temporary restraints is where a plaintiff is filing an action but wants to keep the other party from causing further harm during the time between the filing of the action and first court date. Without temporary restraints, the opposing party has (at least) the time between the filing of the complaint and court date and may continue whatever conduct it is that caused the suit. Temporary restraints sought in estate litigation generally seek to preserve the status quo, essentially to put everything in amber. These temporary restraints are often continued after the initial court date until the case can be fully heard.

It’s my experience that courts of equity are generally sympathetic to preserving the status quo, which makes good sense to me. While a chancery court is empowered to do equity and is given broad discretion to do so, the actual articulated standard actually sets the bar quite high. If a party, for whatever reason, opposes a request for an order preserving the status quo, the standard can be difficult to meet.

The rule governing temporary restraints in New Jersey – R. 4:52-1 – allows for an application for temporary restraints without notice to the other parties, or with notice. The rule seems to suggest that the standard shifts depending on whether or not the application is without notice to the adverse party: a party is not entitled to “any temporary restraints [ . . . ] unless the defendant has either been given notice of the application or consents thereto or it appears [. . . ] that immediate and irreparable damage will probably result to the plaintiff before notice can be served.” While the standard of irreparable damages is applied by rule only to ex parte proceedings, the case law carries this standard through all applications for temporary restraints.

The leading case articulating the standard relative to temporary restraints is a 1982 New Jersey Supreme Court case called Crowe v. De Gioia. The test actually set forth in Crowe is 3-pronged: a litigant must show that there is a risk of irreparable harm, that the law underlying the complaint is well-settled, and that the litigant is likely to succeed on the merits.  Subsequent cases have read the Crowe test to also require a balancing of the relative weight of the harm posed if the relief is denied against the burden on the adverse party if the relief is granted, and additionally that the relief requested is not adverse to public policy.

Notwithstanding customary practice, applications seeking to preserve the status quo – as opposed to ones seeking more extraordinary relief – are not given a lot of special deference under the Crowe standard. (The only prong of the test where the preservation of the status quo is specifically addressed in Crowe is the likelihood of ultimate success on the merits.)

The greatest difficulty is typically meeting the test for irreparable harm. Any injury that can be addressed by monetary damages is not considered irreparable. In estate litigation, we are often seeking to stop a party from raiding the decedent’s assets. Worse, we often know that a judgment for monetary damages will be an empty victory, where the damages will be difficult or impossible to collect.  Preparing to articulate irreparable damages is a significant part of preparing any application for temporary restraints, and even where the plaintiff seeks “only” to preserve the status quo, counsel should be prepared to answer each prong of the Crowe standard, including irreparable damages.