The ways that children of a first marriage can contest a will fall into several scenarios. However, in order to do so, a person must have “standing.” Typically, a person has standing in two situations, explains nj.com in its recent article, “Can children from a first marriage contest a will?”
One way is when the individual is the decedent’s heir by law and would inherit under the laws of intestacy if the will were declared invalid. Another way a person could have standing is if there were a prior will in which the person is a named beneficiary, and the prior will would be reinstated, if the subsequent will were set aside.
For example, in New Jersey, probate laws take blended families into consideration. If a person dies without a will and has descendants, like children or grandchildren who are not descendants of the surviving spouse, then several things would happen. The surviving spouse would inherit 25% of the estate (not less than $50,000 nor more than $200,000), plus one-half of the remaining balance. The descendants from outside the marriage would then inherit the remainder of the estate.
Let’s say George and Gracie were married and had baby Benny. After George and Gracie divorce, George marries Phyllis. If George dies intestate—without a will—then Benny would inherit a portion of his estate. If George dies with a will, Benny has standing to challenge the validity of the will.
As a practical matter, Benny should only challenge the will, if he’d stand to inherit more under intestacy than under the will, and he has a valid challenge justifying that the will be set aside.
The four most common considerations to contest a will are lack of capacity, improper execution, fraud, and undue influence/duress.
It’s not uncommon for someone to successfully contest a will. However, it really depends on the facts and circumstances of each specific case. For example, Benny would have a much tougher time proving undue influence, if John and Phyllis were similar in age and married for 30 years prior to George’s death, than if Phyllis was 50 years younger than George, and he had some level of dementia.
