With more money available for testamentary dispositions than in previous generations, it is not surprising that instances of estate litigation are increasingly a fixture in the estate administration process. Unlike statutes in some other states, New Jersey’s rule relating to in terrorem or forfeiture clauses does little to discourage the filing of will contests. Rather, New Jersey’s statute provides that a forfeiture clause is unenforceable where probable cause exists for the dispute. N.J.S.A. 3B:3-47. Thus,with the increased likelihood of litigation, practitioners should seek alternative ways to prevent estate litigation before it is a problem.
The first line of attack against a will is a contest over improper execution. To create a valid will, New Jersey requires substantial, not strict, compliance with the formalities described at N.J.S.A. 3B:3-2. See In the Matter of Ranney, 124 N.J. 1 (1991). Those formalities require that the instrument be in writing, signed by the testator, and witnessed by at least two individuals who were either present during the testator’s signing, or before whom the testator acknowledged his signature. N.J.S.A. 3B:3-2.
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