Exceptions Permitting a Will Contest to Be Filed Late - Probate Lawyers

3 Exceptions to the 4 or 6 Month Deadline to File a Will Contest

In a prior post, we looked at the general 4 or 6 month period in which a will contest may be filed. This post will focus on three types of exceptions to that general rule that justify the filing of a will contest after the standard deadline.

1. When a Will Contest May Be Filed Within a Reasonable Time Under the Circumstances

The first such exception comes straight from Rule 4:85-1 of the New Jersey Rules of Court, which is the very rule that establishes the 4 or 6 month cut off. The Rule provides that if relief is sought pursuant to either Rule 4:50-1(d)-(f) or Rule 4:50-3 a complaint may be filed “within a reasonable time under the circumstances.”

Rules 4:50-1 and 4:50-3 pertain to circumstances under which a judgment already entered by a court may be vacated. In other words, they speak to situations where a decision or ruling already made by a court may be undone. Relief may be appropriate under these rules if a person seeking to undo a court’s judgment or order can demonstrate that:

1) the judgment is void;

2) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application;

3) there is any other reason justifying relief from the operation of the judgment or order;

4) the judgment or order has been obtained based upon “fraud upon the court.”

In short, if a judge can be convinced that any of these situations apply, a will contest may be filed “within a reasonable time under the circumstances”, and outside of the 4 or 6 month cut off.

2. When a Will Contest May Be Filed Up to 30 Days Late

A second exception arises from Rule 4:85-2. The rule provides that the 4 or 6 month period may be extended “for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.” Whether or not this extension of time is available in any given situation is subject to the discretion of the judge handling the case.

3. When a Will Contest May Be Filed Late Because of Failure to Give Notice

A third exception may be available when the estate’s representative fails to properly notify the person contesting the will as required by New Jersey’s Rules of Court. Specifically, Rule 4:80-6 requires that written notice that the will has been probated must be given within 60 days after the date of probate of a will. This written notice must be given by the estate’s personal representative to the deceased person’s spouse, heirs, next of kin and other personal representatives as described in Rule 4:80-1(a)(3). Where a person contesting a will did not receive timely notice of the contents of the will probated, but filed the will contest within a reasonable time after learning of the contents of the will, New Jersey courts have permitted will contests to go forward even when they were filed well after the 4/6 month deadline. In other words, if you are or were entitled to timely notice, but did not receive it, you may still be able to contest a will even though the 4 or 6 month period has already passed.

It should be emphasized that while the law allows for these exceptions, whether or not they are available to any particular person seeking to contest a will depends on the specific facts of the case. Whether or not the circumstances are sufficient for one or more of the exceptions to apply will ultimately be up to the judge who is presiding over the case.

The Time Limit to File a Will Contest Does Not Apply to All Probate Actions

It is also important to note that while the 4 or 6 month limitation applies to will contests, it does not apply to all types of probate actions or claims. Actions challenging how the executor, administrator or personal representative has administered the estate are not subject to the 4 or 6 month limitation. If money or assets have been improperly distributed or withheld, for example, a beneficiary or person with an interest in the estate may challenge the representative’s behavior after the passage of 6 months without have to prove they are entitled to any of the exceptions described in this post.

In order to pursue a will contest or other probate action or claim, a lawsuit must be filed in the Superior Court in the county of the deceased person’s primary residence, also known as a domicile. The probate lawyers at the Law Office of Bart J. Klein, located in Maplewood, New Jersey, counsel clients regarding estate disputes and probate disputes, including will contests and challenges to the administration of estates. We appear in courts throughout New Jersey and welcome you to contact us for further information.

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