How to Block the Probate of a Will in New Jersey Surrogate's Court
Timing is KeyBy statute, no Will may be admitted to probate until after 10 days from the death of the testator (N.J.S.A. 3B:3-22). This gives a 10 day head start to any individual who has reason to block the probate of the Will.
Take the Initiative: File a CaveatFile a Caveat with the Surrogate's Court.
While it is possible to challenge a Will once it has been admitted to probate, generally speaking, blocking that probate in the first place places a greater burden on the person offering the Will for probate. Therefore, within the 10 day statutory period (or before the Will has been admitted to probate) file a Caveat with the Surrogate's Court.
A Caveat is a written objection to the probate of a Will.
After the Caveat has been FiledNew Jersey court rules state that the Surrogate's Court may not admit a Will to probate where a Caveat has been filed (4:82). The Surrogate does not have discretion to allow the probate. The burden now shifts to the proponent of the Will to prove its validity in Superior Court. This requires a full-blown court action with service of process. It also allows the opponent of the Will to argue reasons as to why the Will should not be probated. If an agreement is reached later, the Caveat may be removed.
ResultThe Caveat is a useful tool to prevent the ease of the probate process in Surrogate's Court from adversely effecting your client. In a situation where 2 Wills are found and there is a question as to the validity of each, file a Caveat to prevent the Will that would be offensive to your client from being admitted to probate.
Also, remember to file the Caveat in as many counties as you think could potentially admit the offending Will to probate. The counties don't publish lists of filed Caveats and this could cause a harmful result if the decedent had ties to more than one county. The cost of filing is cheap compared with the cost of an action to set aside a probate. Also, irreversible damage may be done by the nominated Executor by the time the probate is set aside.