A challenge to a will (as opposed to, for example, (1) a challenge to non-probate designations; (2) a challenge to pre-death transfers by a power of attorney; or (3) a challenge to the actions of an executor following probate of a will) may be initiated two ways. First, by way of a caveat; second, by way of order to show cause. Discussed below are the time limits for filing each.
A caveat is “the formal mechanism by which one gives notice of a challenge to a will that has been or is expected to be offered for probate.” In re Stockdale, 196 N.J. 275, 301 (2008). Pursuant to N.J.S.A. 3B:3-22, “no will shall be admitted to probate until after 10 days from the death of the testator.” Therefore, if a caveat is filed within that 10-day period, or at some time prior to the will being presented for probate, the will cannot be probated. R. 4:82. This is important because the failure to probate the will prevents the proponent from qualifying as the executor and therefore denies the proponent access to estate funds to defend the Will. LexisNexis Practice Guide, New Jersey Probate and Estate Administration §3.15. The filing of a caveat removes the Surrogate’s jurisdiction over the matter, and transfers jurisdiction to the Superior Court. In re Stockdale, 196 N.J. at 301. LexisNexis Practice Guide, New Jersey Probate and Estate Administration, §1.05.
Order to Show Cause
Once a will has been probated, a challenge to that will may be made by way of order to show cause. Generally, an order to show cause seeking to set aside the probate of a will must be filed within 4 months after probate of the will. R. 4:85-1. If the person aggrieved resided outside New Jersey at the time of probate, the order to show cause must be filed within 6 months of probate. These deadlines may be extended up to 30 days upon a showing of good cause and in the absence of prejudice, R. 4:85-2. However, if relief is sought based on a fraud upon the court, the complaint “shall be filed within a reasonable time under the circumstances.” R. 4:85-1.
The time for filing an order to show cause has been enlarged, based in part upon R. 1:1-2 (allowing relaxation of the court rules to prevent injustice), where the contestant of a will had to determine the existence of a prior will in order to have standing to challenge the current will, but the proponent of the will stonewalled attempts to discover that information. In re Will of Landsman, 319 N.J. Super. 252 (App. Div. 1999), certif. denied, 161 N.J. 335, 336; 162 N.J. 127 (1999); see Comment to R. 4:85-3. The time limit may also be enlarged in cases of an infant claimant, Comment to R. 4:85-3, and might possibly be tolled due to a claimant’s incapacity, until a guardian has been appointed. See Landsman, 319 N.J. Super. at 263 n. 3.
In the 2010 unpublished decision In re Estate of Racamato, 2010 N.J. Super. Unpub. LEXIS 2506 (Oct. 18, 2010), our Appellate Division confirmed the 4 month time limit for will contests set forth in R. 4:85-1, but distinguished will contests from the action before it. In Racamato, the appellate court reversed a trial court dismissal of an order to show cause, finding that the case before it was a “challeng[e to] the administration of an estate,” rather than an “action challenging probate of a will or letters appointing a fiduciary.” As such, the court held that the appropriate time limits were contained in R. 4:87-1 (action to compel an executor to settle an estate), rather than in R. 4:85-1.