Legal Question in Wills and Trusts in New Jersey
omitted heirs
My father died 06/24/2004. My aunt was named executrix in my dad's will dated 1986. It listed me, his son as alternative executor and devised his estate to my aunt. She
met with myself, my brother and sister and indicated she would divide the estate up evenly between us kids. However, recently my sister sent a letter to my aunt requesting an advance against the estate and her intentions seem to have changed. My aunt said she couldn't do that and that my sister should read the will again which reads that my father devised his estate to her. Also she indicated that she already gave all of his personal belongings to us and she could have sold these items and included them in his estate. We don't know what to do. It seems that our aunt has no intentions of providing us, his heirs, with anything. My brother was under age when the will was drawn up and we believe that there may have been another will,can we contest this will? We were not informed of our father's impending death until 1 week before. At this time, our father could barely speak and my aunt had already gone into his house and removed all of his financial and legal documents. He had 60,000 in a savings account and another 50,000 in equity in his house. Please help.
3 Answers from Attorneys
Re: omitted heirs
You need to retain an attorney immediately if you wish to challenge either the Will or your aunt's actions as executrix. There are time limits on doing so and if you do not act immediately you could lose the right to challenge the will or your aunt's actions.
You indicate that the Will apparently indicates your aunt is to receive the entire estate. However, you also raise issues that your aunt may have made promises to share the proceeds of the estate; you also raise the issue that your aunt may have exercised undue influence over your father. It does seem extremely odd that your father left nothing at all to his own children, and if he was very ill at the time the will was executed, undue influence may be a real issue.
Obviously, your attorney would need to review the Will itself and to get more information from the family members involved. I handle this kind of work, please contact me immediately if you wish to discuss retaining my services.
I strongly recommend that you consult with an attorney immediately so that you can explore your legal rights, obligations, and options. If you wish to discuss retaining my services, contact me at:
(973)-605-8995
(*Licensed in New Jersey, Maryland, and Dist. of Columbia)
[Disclaimer: The above comments are not intended as nor should they be relied upon as "legal advice", which can only be obtained by personal consultation with a retained attorney; at which time the specific facts and circumstances of your case can be thoroughly evaluated. This reply is provided for general informational and educational purposes only, and does not create an attorney-client relationship with the responding attorney.]
Re: omitted heirs
I agree with Alan. You may have several grounds to contest the will: As omitted heirs and undue influence, tortious interference with the right to receive an estate, among others. Of most importance, you must file your contest within 4 months of the date of the will being probated, so you do not have much time. As part of the suit, you would seek an accounting for everything that has taken place. You should be aware that while you have a good chance to get something, there may be questions as to why you (the children) were not mentioned, and why your aunt was left everything. You may want to serve interrogatories on your aunt (written questions) and also take her deposition (informal oral questions before a court reporter). Some facts may come out that could help you. You might also want to advertise to see if there were a later will than that which was probated. I should caution you that will contests can get very expensive to pursue. If possible, can I have the opportunity to see the Will that was probated, which, after my review, might lead to other recommendations or suggestions.
Re: omitted heirs
It appears to me that you really have no case. You indicate the Will was done in 1986...it would be difficult if not impossible to show undue influence in a Will that old.
Also, if your aunt is the sole beneficiary, you can't force her to divide the estate between the children, even if she told you she would do so. It's an unenforceable oral promise made without consideration.
If there is a later will naming you as beneficiaries, then you have a different situation. However, if the 1986 Will is the only Will, I don't think you have much hope of getting anything.
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