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Defective Wills

Identifying and Preventing Defective Wills in New Jersey

A will is a crucial legal document outlining one’s asset distribution upon death, subject to specific legal requirements. However, not all wills meet these standards, and defects may arise, jeopardizing validity. In such cases, guidance from our Moorestown NJ defective wills attorney is imperative. 

“Defective wills” encompass various issues rendering a testament legally invalid. Understanding common causes of defects, New Jersey’s testamentary formalities, and potential consequences is essential for estate planning.

Quick Summary:

  • Definition of Defective Wills: Defective Wills are flawed or erroneous wills that can be partially or entirely invalid due to issues with formalities (such as witnessing) or content (like ambiguity). 
  • Common Causes of Defective Wills in New Jersey: Lack of testamentary capacity (mental unsoundness), undue influence (pressuring testator to change wishes), fraud (deception in creating or executing the will) and improper execution (failure to meet legal formalities).
  • Consequences of a Defective Will: Will contests, partial or complete invalidation, application of intestacy laws, delayed asset distribution, and strained family relationships.
  • How to Avoid Defective Wills: To avoid a defective will, ensure mental soundness when creating it, resist external pressure, and regularly update the will to reflect life or asset changes. 

What is a Defective Will?

A defective will is a legal document outlining the distribution of a deceased person’s estate that contains flaws or errors that could potentially make it invalid in whole or in part. These flaws can be related to either the formalities of its creation or the content itself.

Failing to meet legal requirements or facing potential legal challenges characterizes a defective will, making it essential for those involved in estate planning to grasp its defining features.

What are the Common Causes of Defective Wills in New Jersey?

Creating a last will and testament is a crucial aspect of estate planning, establishing the legal framework for asset distribution post-mortem. However, pitfalls leading to defective wills should be avoided. Understanding common causes of defective wills in New Jersey is essential for effective estate planning.

Lack of Testamentary Capacity

One of the requirements of a will is that it must be made by a person “of sound mind.”  A will made by a person who is not of sound mind and lacks testamentary capacity is not valid. 

Testamentary capacity involves understanding property, rational decision-making, compromised by conditions like dementia or mental illness.

Undue Influence

Undue influence occurs when external pressures or coercion lead the testator to make decisions that do not align with their true intentions. This may be inferred from factors such as isolation of the testator, confidential relationships, and a significant disparity between the will and the testator’s prior expressed intentions.

In New Jersey, undue influence is comprised of the following elements:

  • significant exertion of influence, 
  • overpowering of free will, and 
  • compelling the creation of a will that would not have been made otherwise.


Fraudulent activities in the creation or execution of a will can render it defective, affecting its legitimacy and potentially leading to legal challenges. Suspicion may arise from sudden, unexplained changes or questionable circumstances, suggesting potential fraud.

Improper Execution

New Jersey has specific legal formalities for the proper execution of a will, including the presence of witnesses and, in some cases, notarization. Failing to meet these formalities, such as inadequate witness signatures or notarization, may render the will defective.

What are the Consequences of a Defective Will?

The consequences of a defective will can be significant and may lead to various legal challenges and outcomes. Here are some common consequences associated with defective wills:

Will Contest and Litigation

If a will is defective, it may become the subject of legal challenges, leading to a will contest. Interested parties, such as beneficiaries or heirs, may contest the will based on grounds like lack of testamentary capacity, undue influence, fraud, or improper execution.

Partial or Complete Invalidation

A defective will may be partially or completely invalidated by a court. The court may strike down specific provisions or declare the entire document void, depending on the nature and extent of the defects.

Intestacy Laws Apply

If a will is declared defective or invalid, the distribution of assets may be governed by intestacy laws. These laws determine how an estate is distributed in the absence of a valid will, usually following a predetermined hierarchy of heirs.

Delay in Asset Distribution

Legal challenges and the probate process associated with a defective will can lead to delays in the distribution of assets to the intended beneficiaries. This delay may cause financial strain and uncertainty for those waiting to receive their 

Emotional Strain on Family Relationships

Disputes arising from a defective will can create tension and conflict among family members. The emotional strain caused by legal battles may have lasting effects on relationships.

How to Avoid Defective Wills?

To ensure the validity and integrity of a will, individuals must be proactive in avoiding common pitfalls that could render a will defective. Here are essential steps to help prevent the creation of defective wills:

Ensure Testamentary Capacity

Create your will when you are in good mental health and fully understand the nature and extent of your assets. If there are concerns about capacity, seek medical and legal advice to determine the appropriate course of action.

Avoid Undue Influence

Execute your will free from coercion or undue influence. Ensure that the decision-making process is independent and not manipulated by others. If there are concerns about undue influence, consult with an attorney to address the issue appropriately.

Be Transparent and Communicate

Clearly communicate your wishes to your family members and beneficiaries. Transparency about your intentions can help reduce the likelihood of misunderstandings and potential challenges.

Regularly Update Your Will

Life circumstances change, and so should your will. Regularly review and update your will to reflect changes such as marriage, divorce, birth of children, or changes in financial status. An outdated will is more susceptible to defects.

Why Do I Need a Defective Wills Attorney in New Jersey?

A Defective Wills Attorney in New Jersey is crucial for several reasons when dealing with estate planning complexities and potential will challenges. Here’s why you might need one:

Legal Knowledge: 

  • Possesses in-depth knowledge of New Jersey’s laws and regulations related to wills and estates.
  • Ensures proper drafting, execution, and updates in accordance with state legal requirements.

Prevention of Defects: 

  • Guides you through potential pitfalls to prevent the creation of defective wills.

Avoiding Undue Influence and Fraud: 

  • Provides advice on mitigating the risk of undue influence and fraud during will creation.

Proper Execution: 

  • Guides you through the correct execution process, including witness and notarization requirements.

Having your will drafted and executed correctly, with the assistance of our estate planning law firm, offers peace of mind. It reduces the risk of legal challenges and ensures your wishes are carried out as intended.

Call Our Moorestown NJ Defective Wills Attorney Now!

The issue of defective wills is a complex and critical one with significant consequences for individuals and families. While wills are intended to ensure the orderly and desired distribution of a deceased person’s estate, various factors can contribute to flaws and errors that render them invalid, in whole or in part.

At Posternock Apell, P.C., our Moorestown NJ defective wills lawyers offer crucial legal guidance. From addressing testamentary capacity issues to guarding against undue influence and fraud, our estate planning law firm provides the necessary insight to maintain the integrity of wills. 

Secure the future of your estate with confidence and clarity. Contact us now to schedule an initial consultation and let us provide you with strategic guidance and legal resilience. We also provide legal services in real estate, business law, and consumer fraud cases.