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.

—

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.

Undue Influence and Joint Bank Accounts

In my practice, it’s common for me to learn that a decedent held a joint bank account with an adult child or other trusted person in the belief that a joint account would be a convenient way for the fellow account holder to assist in paying bills, depositing checks, and the like. Typically, in an amicable administration, it’s understood that these are “convenience” accounts, and the joint account holder waives off any claim to the account.

It’s not uncommon to find that a decedent divided his or her money into several accounts and made each account joint with a different person. In an amicable administration, this arrangement is viewed as a sort of homespun estate plan, and there is no challenge to the right of each of the surviving account holders to their respective accounts.

Using a joint bank account as a convenience account is unnecessary and inadvisable, and using a joint bank as an on-the-side estate planning tool is a bad idea all the way around, for the reasons described here and otherwise.

The third scenario I encounter involving joint bank accounts is one in which impropriety, typically in the form of undue influence, is suspected. When we discover that, in the months prior to her death, a decedent was brought to her banks by a trusted nephew or a new paramour and that she converted all of her accounts into joint accounts with that person, the inference of impropriety is unavoidable.

It surprises many of my clients to learn that, by statute in New Jersey, money left in a joint bank account “belong[s] to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.” Clear and convincing evidence is a difficult burden to meet if ownership of the account is to be litigated; at this level of analysis, the right of the surviving account holder to the asset seems nearly unassailable.

Under suspect circumstances, however, the right of joint account holder is quite vulnerable if challenged. The first point to recognize is that, in circumstances that give rise to estate litigation on this point, the addition of surviving account holder to the account is almost always a de facto gift. These are not accounts where both owners paid in and both owners used the account to conduct their affairs; these are typically accounts established and funded by the decedent, with the surviving owner later named. The courts are quick to view such transactions for what they are: inter vivos gifts from the decedent to surviving owner.

In the leading New Jersey undue influence case, now more than half a century old, the Supreme Court distinguished between the standard for determining undue influence in the making of a Will as compared to inter vivos gifting. The Court found that “where one is giving away what one can still enjoy, the presumption of undue influence is raised more easily than in cases involving wills.” Subsequent cases have expanded this point, and it is now well-settled how little is required to raise a presumption of undue influence as to inter vivos gifts.

Uniquely, the burden of proof shifts against the surviving account holder if a confidential relationship between the parties can be shown. That is all that is required; if a confidential relationship existed, the surviving account holder must affirmatively that the gift – the making of the joint account – was not the product of deception or undue influence.

What constitutes a “confidential relationship” will require a series all its own, but in short something akin to trust in handling financial or legal affairs will suffice. There is often, in my practice, a power of attorney by the decedent to the surviving holder, and that fact alone establishes a confidential relationship sufficient to transfer the burden of proof.