Will Contests Part III: The Losing Party Can Get His Attorneys’ Fees Paid

February 12, 2015Articles Garden State Gavel Blog

This is the third part of a series on will contests. I invite you to read Part I and Part II.

Many of you would be surprised to learn that under New Jersey law, you can institute a Will contest, lose and nevertheless have the prevailing party, that is the estate, pay the loser’s attorneys’ fees.

Under New Jersey Court Rule 4:42-9(a)(3) all that is necessary for the losing party to get her attorneys’ fees paid is to establish that she had reasonable cause for contesting the validity of the Will. Reasonable cause requires a showing that the inquiry into the testamentary sufficiency of the Will was reasonably justified by the facts.

For a range of reasons, including the fact that will contests arise when the testator is no longer available to confirm that her Will was made of her own free will, New Jersey courts award fees to both Will proponents and contestants.

In many Will contests, the fact that the losing party may be entitled to attorneys’ fees creates a powerful incentive to settle the case. Because it is relatively easy to establish reasonable cause, litigants are often faced with a win-win scenario in instituting Will contests.

Those who challenge Wills will, in most cases, at least, get their attorneys’ paid and have a very good chance of securing a settlement. That is because the estate that is defending against the will contest, will often settle to avoid paying two sets of attorneys.

Careful estate planning can minimize the possibility of Will contests. You should plan your estate carefully and with the assistance of competent counsel.