Time frame for filing a Complaint against the probate of a Will

In the Matter of the Estate of Ehmer, Superior Court of New Jersey, Appellate Division, Docket No. A-5041-09T1, the Court addressed the time frame for filing a Complaint against the probate of a Will.

In this matter, the decedent executed two Wills, one in 2001 and one in 2004. The primary beneficiaries of the first Will were the decedent’s child, grandchildren and her church. The latter will included only her child. The decedent died in July of 2008. In August 2008, the decedent’s child probated the 2004 Will in Ocean County. Unaware, the decedent’s grandchild attempted to probate the 2001 Will in Hudson County which was denied due to the Ocean County probate.

In March 2009, the decedent’s grandchild (plaintiff) filed an action in Ocean County. Although not raised in her answer as a separate defense, the decedent’s child (defendant) moved for summary judgment on grounds that the Complaint was not timely filed pursuant to Rule 4:85-1. Rule 4:85-1 provides that a Complaint to see aside the probate of a Will must be filed within four (4) months after probate. However, the Court held that this Rule incorporates the provisions of Rule 4:50-1 which allows for a filing outside the four-month limitation period under appropriate circumstances.

Thus, under the totality of the circumstances and the interests of justice, the Appellate Division held that the plaintiff should be allowed to proceed.


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