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

Posted by: Pierson W. Backes | Posted on: December 1st, 2011 | 0 Comments

I’ve written here about how little time a litigant has to challenge the probate of a Will in New Jersey. Under Rule 4:85-1, 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.

(Edit: Thanks to attorney Kevin Pollock for pointing out that, when I first posted on this topic, I’d omitted any mention of the 30-day relaxation of these time periods allowed under certain circumstances pursuant to R. 4:85-2.)

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.

Probate Litigator