SW Legal studies in Business

Claims of Fraud in Making a Will Must Be Raised During Probate

Appeals court held that members of a family who claim fraud in the making of a will must raise their claims during probate of the will, not file suit in tort after probate is completed. The purpose of probate is to allow an estate to be settled properly, so all relevant issues should be raised at that time.

Topic Wills, Estates, and Trusts
Key Words

Will; Fraud; Probate

C A S E   S U M M A R Y

When Mary Garruto, who had never married, died, her will directed that most of her estate go to a friend. Her brothers, who had provided a home for her for most of her life, received token gifts. After probate was completed, the brothers sued Cannici, the primary beneficiary, for tortious interference with an expected inheritance. They contended that Mary intended them to have most of her estate and that she had used undue influence through fraud. The trial court held for the estate; the brothers appealed.


Affirmed. Although there can be a cause of action for tortious interference with an expected inheritance, it is barred when plaintiffs fail to pursue the remedy in probate proceedings of which they received timely notice. To do otherwise would “play havoc with traditional probate law.” During probate, those who believe there was undue influence used in the making of the will should bring forward their objections at that time. To permit an attack on the will later unnecessarily complicates and prolongs the settlement of estates.


Garruto v. Cannici, ---A.2d--- (2007 WL 4459989, Super. Ct., App. Div., N.J., 2007)

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