Claims seeking to set aside a will based on undue influence have become more prevalent over the last few years as the economy weakens and as more baby boomers reach the fragility of old age.  Opportunities for children or others to take control of a senior’s finances often leads to temptations that are too often acted upon to the detriment of the intended heirs and beneficiaries.

Undue influence has been defined by the courts (in the context of will contests) as that sort of influence which results in the destruction of the free agency, that is the free will and judgment, of the person over whom it is exerted.  In re Hale’s Will, 21 NJ 284 (1956).  It has been found to exist where the testator yields to the will of another merely for the sake of peace or, in other words, where a testator is mentally or morally coerced into doing something contrary to his own volition.  It amounts to mental, moral or physical coercion which constrains a person to do what is contrary to his own wishes.  5 N.J. Practice Clapp, Wills & Administration (3 ed. 1982), § 62.

The New Jersey Supreme Court has defined “undue influence” as “‘mental, moral or physical’ exertion which has destroyed the ‘free agency of a testator’ by preventing the testator ‘from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First Nat. State Bank, 87 N.J. 163 at 176 (quoting In re Neuman, 133 N.J.Eq. 532, 534 (E. & A. 1943).  The Appellate Court in In re Liebl, 260 N.J. Super. 519 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993), expanded on the concept of undue influence:

“It must be such as to destroy the testator’s free agency and to constrain him to what he would not otherwise have done in the disposition of his worldly assets.  The coercion or domination exercised to influence the testator may be moral, physical, or mental, or all three, but the coercion exerted upon the testator’s mind must be of a degree sufficient to turn the testator from disposing of his property according to his own desires by the substitution of the will of another which he is unable to resist or overcome.”

260 N.J. Super. at 528.

In order to raise a presumption of undue influence, a contestant needs to establish that a confidential relationship between the testator and the beneficiary existed at the time the will was made, and that there are suspicious circumstances surrounding the change in disposition.

Courts have found that a confidential relationship includes all legal and fiduciary relationships as well as relationships where trust and confidence actually exist.  A confidential relationship is found “where trust is reposed by reason of the testator’s weakness or dependence…”  Haynes, supra. at 176.  The essentials of a confidential relationship are a reposed confidence and dominant and controlling position by the beneficiary of the transaction.  A confidential relationship exists when circumstances make it certain that the parties do not deal on equal terms, but on one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed, which does not exist where parties deal on terms of equality.  See In re Stroming’s Will, 12 N.J.Super. 217 (N.J.Super. A.D. 1951); Croker v. Clegg, 123 N.J. Eq. 332, (N.J.Err. & App. 1938).

The second element required to raise the presumption of undue influence in relation to testamentary bequests is the presence of suspicious circumstances, which circumstances “need be no more then slight.”  See Haynes, supra. at 177.  See also In re Lehner’s Estate, 70 NJ 434 (1976); In re Catelli’s Will, 361 NJ Super 478 (App Div 2003).

Courts will look to the following factors to assist them in finding suspicious circumstances surrounding the preparation and signing of a will and the presence of undue influence:

1.  whether the beneficiary was present at the execution of the will;

2.  whether the beneficiary was present when the testator expressed a desire to make a will;

3.  whether the beneficiary recommended the attorney who drafted the will for the testator;

4.  whether the beneficiary had knowledge of the contents of the will prior to its execution;

5.  whether the beneficiary was involved with speaking to the attorney about the preparation and contents of the will prior to its preparation;

6.  whether the beneficiary was involved in securing witnesses to the will;

7.  whether the beneficiary was in charge of safekeeping the will subsequent to its execution;

8.  whether the beneficiary secreted the will from other beneficiaries;

9.  whether the beneficiary isolated the testator from other family members; and

10.  whether the beneficiary disparaged other family members to the testator.

Will contests based on grounds of undue influence often involve strategic decisions that are best handled by attorneys specializing in probate litigation matters.  There are often statutory time frames which must be met in asserting a claim of undue influence, and therefore, if suspicion arises, an attorney should be consulted immediately so that such a claim may be evaluated and if necessary, a timely complaint filed.

Preparing for and Participating in a Will Contest Hearing

Typically, the changing of account ownership forms or deeds does not happen in one day, but occurs over time. Accordingly, the aggrieved siblings may ask a court for a reasonable amount of discovery to subpoena all banking records and medical records from the date of death back to the onset of the illness, seeking to show a nexus between the two. Then to prepare for a hearing, their lawyer will propound interrogatories on the alleged influencer, take his or her deposition, serve anyone with knowledge of the facts with interrogatories, and then take their depositions as well. Once all the banking and medical records are received, experts are hired. Perhaps a forensic accountant will be engaged to quantify the re-titling of accounts and establish the amount of money in controversy, and a geriatric medical professional may be hired to attest to the decedent’s weakened condition.

 

Prior to a trial, the court may suggest, and the lawyers may agree, to mediate their dispute. An experienced lawyer or retired judge may accept the role, review all the pleadings and discovery, then host an informal mediation. You could cut the tension with a knife when all the family members are in one room, each believing they are right, and genuinely believing that the other heirs do not understand and never understood their deceased parent. The room may be filled with emotion, but a good mediator, reasonable lawyers, and family members looking to put an end to the divide may be able to reach a settlement at, or shortly after mediation. If the case does not settle, pre-trial briefs are filed and a trial date set such that a judge will be destined to determine what the decedent intended. A court may subsequently order that the re-titled assets which benefitted the influencer be reversed and be distributed as provided in the decedent’s Last Will and Testament, and sometimes the court is so enraged by the influencer’s actions that he is ordered to pay the legal fees incurred by the siblings.

 

Most will contests involve allegations that the testator lacked sufficient mental capacity to execute the Last Will and Testament. The standard for mental capacity is low and will be met if, at the time a will was executed, the testator understood: a) the extent of his assets; b) who his heirs are; c) that the will is meant to dispose of his assets at death; and d) the terms of distribution under the will. At least initially, the witnesses and notary who watched the testator sign the documents typically have also attested that the testator, at that moment in time, had mental capacity. Are the witnesses psychologists? Probably not. Can a patient who suffers from early onset of Alzheimer’s have a moment of clarity sufficient to sign a will? Probably. If heirs challenge not just the will, but also the three subsequent codicils and five gifts which took place over a two-year period, must mental capacity be established for each act? Although there is a presumption that a testator is of sound mind and competent when he executes a will, claims may often be filed seeking to set aside or invalidate a will or gifts claiming the testator lacked testamentary capacity. To prosecute such a claim, a psychologist will need to be retained to testify that the testator either had or lacked capacity at the time the will or codicil was executed. Witnesses to the execution of the will and the attorney draftsperson also become key witnesses in the litigation.

 

Many times, the estate planning attorney will take adequate precautions and document evidence of capacity in the client’s file, or will videotape the will signing if a will contest is expected. Some people know their will is going to be contested and will actually hire a psychiatrist or psychologist to opine in writing that the testatrix has capacity. Then someone will videotape the will signing. During the taping, the testatrix reads a prepared statement that might go something like this:

 

“My name is Contessa Capacita and I have two daughters, Maria and Tina. Yesterday, I met with my accountants, reviewed my balance sheet, and am aware that my assets total approximately $100 million. I am here today, in the presence of two witnesses and a notary, to sign my Last Will and Testament. I have read it and it is consistent with my intentions. I have intentionally made no provisions for my daughter, Tina. It is difficult for a mother to cut her own daughter out of her will, but I am doing so knowingly and voluntarily. My reason for cutting Tina out of my estate is fairly simple. She has not acted like a daughter to me, she shows me no love or affection. She does not call or write, and has, for too many years, only caused me pain. I have had enough. So as to protect my estate, my daughter Maria, and my legacy I read this statement out loud, so there will no mistake or inquiry about my intentions.”

 

The lawyer then reviews the will with the Contessa, and in the presence of the witnesses and notary, she signs the will.  Tina has little to no chance of over-turning the will…unless Maria was seen in the video, hiding behind a plant and snickering.

 

Recent Cases:

Attorneys’ Fees Capped by Court Based on Representations by Attorneys Prior to Settlement

In the Matter of the Estate of Halina Krzeminski, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-3182-10T1) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges A. A. Rodriquez and Ashrafi.

Attorney Joel Davies, Esq. appeals from the trial Court’s order denying his motion for reconsideration of the amount of attorney’s fees awarded to him following litigation of a contested will. Davies claims on appeal that the trial court improperly reduced his fee request based on an improper policy of capping the hourly rate charged by attorneys payable from an estate.

On appeal, although the Appellate Division agreed that a particular Judge’s policy of capping fees should not be a basis for an award of fees under R. 4:42-9, the Judge in this case did not abuse his discretion.

Decedent’s unexecuted Will was offered for probate and Davies represented potential beneficiaries. Settlement discussions were held between the parties and after hearing estimates on fees from the attorneys, the judge indicated that it was the policy of the Surrogate’s office to cap fees at $200 per hour. At the time, none of the attorneys objected, and Davies estimated his fees to be $50,000.

The parties then entered a settlement and a consent judgment was entered, with the Court authorizing the attorneys to submit Affidavits of Services to the Court for approval. Davies submitted an Affidavit seeking $92,155 based on an hourly rate of $350, an amount higher than the other attorneys. The Court awarded Davies a reduced amount of $52,988. Davies then filed a motion for reconsideration which was denied. In his oral decision, the Judge carefully reviewed the Affidavit of Services filed by Davies and considered the applicable standard of review. The Judge stated while he did not have a set policy of capping the rate at $200, it was his belief that the attorneys had consented to that rate at the time of settlement. Davies appealed.

In calculating an award of fees, the Court must determine the lodestar, the number of hours reasonably expended, multiplied by a reasonable hourly rate. This must be weighed against the specific circumstances and the recovery. Davies was paid 25% of the amount of his clients’ total recovery, and the hourly rate of $350 was higher than the remaining attorneys, who were agreeable to the $200 per hour cap on fees.

Although the trial court relied on the $200 cap, it was proper given the Court’s finding that the parties apparently agreed to the cap in settlement discussions. The award was upheld as fair and reasonable given these facts.

Caveat Dismissed Based on Inadequate Proofs

In the Matter of the Estate of Michael Fleischer, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-0668-11T2) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges Espinosa and Kennedy.

Plaintiff, the daughter of Decedent, appeals dismissal of her Complaint and caveat challenging the Will of her father. Without reviewing the contents of Decedent’s Will dated in October of 1995, Plaintiff filed a caveat. The Will provided that Plaintiff and her sister, Decedent’s children from a prior marriage, would each receive $1,000, with Decedent’s second wife inheriting the remainder of the Estate.

In her Complaint, Plaintiff alleged that Decedent had drafted an updated Will that he had discussed with her and that the Will offered for probate was not drafted by Decedent’s attorney. The Executor under the Will then filed a Complaint seeking to dismiss the caveat, which was accompanied by a Certification from the scrivener confirming that Decedent had signed the Will freely and that there was no undue influence. A hearing on the Orders to Show Cause were scheduled. On the return date, the Court dismissed Plaintiff’s caveat.

Plaintiff, acting pro se, filed a second Complaint with various allegations, which was also dismissed. Plaintiff, represented by new counsel, then filed a third Complaint seeking an accounting and for the first time, alleged that she received a handwritten birthday card from Decedent on January 27, 2009 which she contended should be admitted as a holographic will. The card allegedly instructed her to handle the Estate and split the assets with her sister. In the alternative, Plaintiff sought admission of a prior Will, dated in August of 1995, that was consistent with Decedent’s premarital agreement providing that Decedent’s assets would pass to his children. A hearing was held and the Court ordered plaintiff to submit a report from a hand-writing expert regarding the alleged holographic will. The Court also continued the restraints on distributions and ordered an accounting.

In early 2011, Plaintiff submitted an expert report which concluded that the alleged holographic will was in Decedent’s handwriting. The parties then entered into a consent order regarding discovery, providing in part that Plaintiff would deliver the original birthday card for inspection by Defendant’s expert. Plaintiff failed to produce the card, despite an order from the Court and motion practice, and the matter was ultimately dismissed, with the Court awarding counsel fees to Defendants.

On appeal, the Appellate Division affirmed, finding sufficient factual support for the trial Court’s dismissal of the action in light of Plaintiff’s failure to abide by the Court’s Order to produce the alleged holographic will. The fee award was also proper in light of Plaintiff’s failure to abide by her discovery obligations.

Complaint Dismissed for Failure to File Within Time Limitations of R: 4:85-1 or R. 4:50-1

In the Matter of the Estate of Chaim Lichtsztra, deceased, et al. v. Pizem and Wiley, Malehorn, et al., 2012 N.J. Super. Unpub. ____ (Docket No.: A-3162-10T3, A-4615-10T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Essex County. Before Judges Messano and Yannotti.

Plaintiff, the daughter of Decedent, appeals from the trial court’s grant of summary judgment and dismissal of her Complaint for failure to bring a timely Will contest under Rule 4:85-1 within six months of the date of probate.

Decedent’s daughter, who resided in New York, had a falling out with the Decedent in 2003, just prior to his death. Decedent executed a new Will in 2003 when he moved from his home in Brooklyn to New Jersey to live with his good friends. After Decedent’s death in 2004, Decedent’s attorney, who drafted the 2003 Will, sought probate of the 2003 Will in New Jersey. Decedent’s attorney was unable to locate the Plaintiff daughter and therefore the trial court allowed for notice by publication.

After his death, Decedent’s daughter probated Decedent’s prior Will, executed in 1996, with the Kings County Surrogate in Brooklyn, New York. Despite receiving constructive notice of the probate of the 2003 Will in 2004 and 2005, Plaintiff did not bring a claim to set aside the 2003 Will which was probated in New Jersey until 2010. On a motion for summary judgment, the trial Court dismissed Plaintiff’s action finding that she did not bring her claim within 6 months, as required by Rule 4:85-1. The Appellate Division upheld this decision, finding that Plaintiff had received constructive notice of the New Jersey probate, as her attorney was aware of the probate and the appointment of an Executor of the Estate in New Jersey in 2004, and that there was no reasonable justification for the delay in filing the New Jersey action.

Decedent’s Will and Inter Vivos Transfers Were Set Aside in Light of Defendant’s Confidential Relationship

In the Matter of the Estate of Antoinette Zarrillo, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0108-2008) (Ch. Div. 2012).

Decedent favored one child over another due to the sacrifices made by that child in caring for her. In a detailed discussion of the facts, Judge Koprowski found that the confidential relationship shared between the care-giving child and Decedent overcame Decedent’s free will. The will and inter vivos transfers were therefore set aside.

Antoinette Zarillo died testate on January 19, 2008. Her husband predeceased her in 2000, and they had three sons, Michael, Nicholas and Joseph. Antoinette left a Last Will and Testament dated December 14, 2004 in which she devised her residence to Joseph, and left her residuary estate, 10% to Michael, and 45% to both Nicholas and Joseph, with Joseph named as Executor. This Will was signed the day before Decedent underwent heart surgery. Decedent’s prior wills signed in 2000 and 1978, devised her estate in equal shares to her three children.

After Decedent’s death, Michael filed a caveat. Michael and Nicholas then filed a Complaint seeking to admit the 2000 Will to probate. Joseph counterclaimed, seeking admission of the 2004 Will to probate. In response, Michael and Nicholas amended their complaint seeking to set aside the 2004 Will as the product of undue influence.

Factually, Joseph and his wife, Ivette, lived with Decedent since 2000, and Joseph shared a confidential relationship with Decedent, and was in a dominant position. He was named as power of attorney and was intimately involved with her finances, and her medical and legal decisions. Joseph contacted an attorney in 2004 to prepare a deed transferring Decedent’s house to he and his wife, which Decedent did not sign. Joseph was present at the estate planning meetings with Decedent when the 2004 will was drafted and executed. Joseph also orchestrated inter vivos transfers of Decedent’s assets to he and his wife.

In a thorough factual analysis, the Court held that although Decedent was relatively independent, her health began to decline during the time that the 2004 will and inter vivos transfers were made. Joseph shared a confidential relationship with Decedent, and suspicious circumstances in light of the change in disposition between the 2000 and 2004 wills, creating a presumption of undue influence which Defendant failed to rebut by a preponderance of the evidence. The testimony of the scrivener of the 2004 will was simply not sufficient to overcome the presumption. The 2004 will was set aside, and the 2000 will admitted to probate.

As to the inter vivos transfers orchestrated by Joseph in 2004, the Court found that they were also the product of undue influence in light of the confidential relationship, and Joseph failed to rebut the presumption. The assets were therefore returned to the Estate for distribution in accordance with the terms of the 2000 will.

Denial of Attorneys’ Fees for Contesting Probate of a Copy of Decedent’s Will Without Reasonable Cause

In the Matter of the Alleged Will of Allan C. Schnecker, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-5249-10T2) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County. Before Judges Waugh and St. John.

Plaintiff appeals from the trial Court’s denial of her request for attorneys’ fees. Plaintiff, a widow of the Decedent, contested the validity of a copy of Decedent’s Will which was offered for probate by Decedent’s daughter. After a trial, the trial Court found by clear and convincing evidence that the Decedent did not destroy or revoke his Will. The Court did not find Plaintiff’s testimony credible but Decedent’s testamentary intentions were adequately set forth in the copy of his Will offered for probate. The Court specifically relied on the fact that Plaintiff had called Decedent’s attorney, right after he died, asking where the Will was, so she assumed that there was a Will.

After the trial, Plaintiff sought attorneys’ fees from the Estate pursuant to R. 4:42-9(a)(3), claiming she had reasonable cause to contest the probate of Decedent’s Will. The Court disagreed, finding that Plaintiff had a weak case. This decision was affirmed on appeal as the trial Court’s findings were amply supported by credible proof, that the testimony offered by Plaintiff or on her behalf lacked credibility, was inadmissible or lacked probative value with respect to whether Decedent destroyed his Will. To satisfy the reasonable cause requirement for an award of fees, Plaintiff was required to provide the Court with a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process. Instead, it was clear that Plaintiff possessed knowledge that the Will was not destroyed and simply failed to establish a factual background to justify her challenge.

Decedent’s Will Admitted to Probate with Alterations and Cross-outs 

In the Matter of the Estate of Catherine R. Hoch, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-0758-10T2; A-4881-10T2; A-5019-10T2) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County. Before Judges Parrillo and Grall.

Brothers of the Decedent and a niece and nephew appeal from the trial Court’s admission of Decedent’s Will to probate, claiming that the Court erred in finding clear and convincing evidence that Decedent intended that her Will, which contained numerous cross-outs and alterations, should act as her Last Will and Testament. They also appeal the trial Court’s failure to award full counsel fees.

Decedent entered a nursing home in January of 2008 where she remained until her death on October 15, 2008. While a resident, Decedent asked Davis, her long time friend and Executrix under the Will to retrieve her Last Will and Testament dated April 1, 1999 from her residence. In its original form, the Will included some bequests to a charity and its principal beneficiaries were Decedent’s niece and nephew. Subsequent to the execution of the Will, Decedent made significant cross-outs and alterations in handwriting on the Will. She voided the residuary bequest to her niece and nephew, changed the bequest to charity and named the Hopewell Museum as her residuary beneficiary. She crossed out the words “Last Will” and the words “Living Trust,” “Corrected” and “Reviewed 9/23/07” have been added, along with a signature of the Decedent.

After Decedent’s death, Davis, the named Executrix, sought probate of the Will in its altered form. Answers in opposition were filed by Decedent’s brothers, intestate takers, and Decedent’s niece and nephew, the original residuary beneficiaries. Mediation proved unsuccessful. A trial was conducted and Davis was the only witness. She testified that she brought Decedent the April 1, 1999 Will and Decedent acknowledged it to be her Last Will and Testament. Davis expressed concern to Decedent over the handwritten cross-outs and alterations, and Decedent remarked that she intended the cross-outs and alterations to be revisions to her Will. She did not share Davis’ concern over their effectiveness. Nevertheless, Davis convinced Decedent to sign a new document which was typed by Davis and incorporated Decedent’s changes. However, before this document could be signed, Decedent passed away.

The trial Court found Davis’s testimony to be “credible, clear and convincing”, thereby finding that the Decedent made valid alterations to the Will, and that the Will in its altered form should be admitted to probate under N.J.S.A. 3B:3-3. The trial Court also reduced respondents’ request for legal fees, finding a duplication in services. The Appellate Division affirmed, finding that there was adequate support for the trial Court’s decision. A court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator. Here, Davis’ testimony was unequivocal that Decedent intended the April 1, 1999 document to act as her Will, with the alterations and cross-outs. This is corroborated by the fact that Decedent preserved the document rather than destroying it. There was also no abuse of discretion in reducing the award of attorneys’ fees in light of the overlap in services.

Lack of Capacity and Undue Influence

In the Matter of the Estate of Vivian Fassett, 2012 N.J. Super. Unpub. ____ (Docket No.: A-3310-10T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges Cuff and Waugh.

Plaintiff appeals from the Chancery Division’s denial of his application seeking to set aside the Last Will and Testament of his sister claiming that she lacked the requisite testamentary capacity and in the alternative, her Will was the product of undue influence.

On his lack of capacity claim, Plaintiff failed to introduce competent medical testimony to support his lack of capacity claim and therefore it was denied. Plaintiff had the burden of proof to overcome the presumption of capacity, which he failed to do. The fact that Decedent passed away within 30 days of executing her Will was certainly not dispositive without additional evidence. Plaintiff had the obligation to produce competent evidence that his sister did not comprehend the nature and scope of her assets, the identity of the persons to receive these assets, the fact that she was executing a will, and that the document would distribute those assets to the persons she had identified as her beneficiaries. Plaintiff failed to carry his burden. Instead, he only submitted unauthenticated documents and information about his sister’s condition at various points in time, which were not dispositive or admissible.

Plaintiff also failed to carry his burden on the issue of undue influence. He failed to establish undue influence by anyone, let alone require a shift of the burden of proof to the proponents of the Will. The parties appeared for a hearing before the Chancery Division, twice, and the Judge’s credibility determinations were entitled to great weight because he had an opportunity to see and hear the witnesses and form an opinion about the credibility of their testimony.

Affirmed.

Standing – Contestant Presented Sufficient Evidence of Paternity to Contest Validity of Will

In the Matter of the Probate of the Will of Darryl Fields, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-2349-10T2) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Cape May County. Before Judges Carchman and Nugent.

Appellant appeals from the trial Court’s order admitting the Will of her putative father to probate and issuing Letters Testamentary to Respondent, Lisa Perkins. The trial Court determined that appellant lacked standing to contest the validity of the Will because she could not prove that Decedent was her father. On appeal, this decision was reversed, with the Appellate Division finding that appellant presented sufficient evidence of paternity to establish standing.

On September 27, 2010, Decedent executed a pre-printed form Will in which he left his entire estate to his landlords, the Respondent and her husband, with whom he lived, and named Respondent as executor. Five and a half weeks later he died. On November 5, 201, appellant filed a caveat.

Respondent filed a Complaint seeking probate and an order to show cause was issued. Appellant answered the Complaint and asked for leave of Court to file a counterclaim, which was answered by Respondent. On the return date of the order to show cause, Respondent argued that the Will was valid, and that until paternity was established, appellant lacked standing. Appellant argued that three documents attached to her Answer established paternity, including her birth certificate, her mother’s Affidavit of paternity, and the certificate she signed authorizing the cremation of Decedent’s remains. She argued that since Decedent was an alcoholic, she needed to explore the circumstances surrounding the signing of the Will; the relationship between the witnesses and the beneficiaries, and whether Decedent had capacity.

The Court then questioned the parties, without objection from counsel. Respondent testified that she was friends with Decedent for 20 years, that he lived with them over that time, that she had not met appellant until after Decedent’s death and that Decedent referred to appellant once after receiving a call from her claiming she was his daughter. There was otherwise no contact with appellant. Shortly before signing his Will, Decedent had recovered an inheritance from his father and purchased the home next door, and died shortly thereafter. Decedent signed the Will in a storage unit where there was a notary, Respondent’s daughter-in-law and her nephew were the witnesses, and Respondent’s husband and Decedent obtained the form Will from the internet.

The Court then questioned appellant who said she found out that Decedent was her father when she was 11, and she had no relationship with him because of his alcoholism.

After hearing additional argument from counsel, the Court dismissed the caveat, dismissed the counterclaim, admitted the Will to probate and appointed Respondent as executrix. The Court stated that if appellant had standing as Decedent’s daughter then she probably would have standing to contest the Will, however, this should be the subject of an independent paternity action. Appellant appealed, and the order admitting the Will to probate was stayed pending appeal.

On appeal, the Appellate Division held that appellant had standing to contest the admission of the Will to probate and is entitled to a hearing to establish paternity. Having asserted that Decedent was her father and having presented prima facie evidence of that fact, appellant had standing to file the caveat and contest the admission of the Will to probate. The lower Court conducted no paternity hearing and afforded the parties no opportunity to present evidence. The matter was therefore reversed and remanded.

Undue Influence and Accounting Issues

In the Matter of the Estate of John C. Dobish, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: BER-P-004-11) (Ch. Div. 2012).

Decedent’s son, Darin, filed a caveat against admitting the Will of his father, John C. Dobish (the “Decedent”), to probate. In response, Darin’s sister, Dorice, filed a Complaint seeking admission of Decedent’s Will to probate and dismissal of the caveat. Darin counterclaimed, alleging lack of due execution, lack of testamentary capacity, undue influence and certain accounting deficiencies by Dorice while acting as agent under Decedent’s Power of Attorney. The prior Will and Trust, executed in 1998, left Dorice a term of years in Decedent’s residence and distributed the remainder of his Estate equally between Darin and Dorice. In 2009, Decedent executed a new Will, Trust and Deed, wherein Dorice was left his residence, and the remainder of the Estate was distributed equally between Dorice and Darin.

After a trial and hearing testimony of the scrivener and the attorney preparing the Deed transfer benefiting Decedent’s daughter, the Court dismissed the caveat.

On the issue of due execution, the Court found the testimony of the scriveners and the witnesses credible that the documents were duly executed. The Court also failed to find any evidentiary support that Decedent lacked testamentary capacity.

On the issue of undue influence, the Court failed to find a confidential relationship or evidence to support any influence by Dorice. Decedent was motivated by a sense of fairness in leaving Dorice his house, as he had loaned Darin monies over the years that were forgiven at his death. Dorice also assisted Decedent, cooking and cleaning for him. The evidence also revealed that Decedent made his own financial and medical decisions before the estate planning documents were signed in 2009. After he had a stroke, Dorice acted under the Power of Attorney, but this was after the documents were signed. The scriveners also testified that when they met with Decedent he understood the terms of the Will, his intentions were clear, and that he did not appear to be under any influence. Also, Darin was never denied access to Decedent. Based on the foregoing, Darin failed to establish a confidential relationship or the existence of undue influence.

The Court also considered payments made by Dorice under the Power of Attorney, finding that certain payments pertaining to the house were improper as they were made by Dorice directly after Decedent had a stroke, and inured solely to Dorice’s benefit. The Court also went on to award Darin fees on the accounting issues, but denying him fees on the Will contest finding his proof to be weak. Dorice was also awarded modified fees from the Estate.

Undue Influence – Decedent’s Intentions Were Adequately Documented and the Will was Properly Admitted to Probate

In the Matter of the Probate of the Alleged Will of Joan Pennella, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-1958-11T4) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County. Before Judges Reisner, Yannotti and Hoffman.

Defendants appeal from the trial Court’s admission of Decedent’s May 24, 2010 Will to probate.

Decedent’s husband died in 1996 leaving her with a multi-million dollar estate. They had 7 children, Carl, Sam, Carol, Madeline, Joseph, Joan and Roseanne. Beginning in 1996, Decedent made substantial annual gifts to her children and made a will leaving her estate in equal shares to each of them. After Sam had borrowed a substantial amount of money from Decedent and refused to pay it back, and Carol borrowed an expensive necklace and refused to return it, and also mistreated Decedent, she decided to change her estate plan leaving Sam and Carol only small bequests, with the remainder being devised in equal shares to her other five children. These intentions were documented by Decedent’s estate planning attorneys and letters from the Decedent, who also executed three Wills documenting these intentions.

After Decedent’s death, Carl sought to probate Decedent’s 2010 Will and asked for dismissal of the caveat filed by Sam and Carol, who claimed Decedent lacked mental capacity and that the 2010 Will was the product of undue influence. After a trial de novo, the Court admitted the 2010 Will to probate. Relying on the testimony of Decedent’s probate attorneys and Decedent’s daughter, Roseanne, also an attorney, who testified as to Decedent’s strong will and her clear intentions, the Court found that Carl did not share a confidential relationship with Decedent, who made her own decisions, nor were there suspicious circumstances. The documented changes to Decedent’s estate plan were a valid expression of Decedent’s intentions. The Court went on to find that even if a confidential relationship existed, Carl presented sufficient evidence to rebut the presumption undue influence.

On appeal, Sam and Carol argue that the trial Court abused its discretion. The Appellate Division affirmed, finding that there was sufficient evidence to support the Court’s findings of fact.

Undue Influence, Lack of Testamentary Capacity; Forgery

In the Matter of the Estate of Betsy A. Schnitzer, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-5670-09T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Essex County. Before Judges Yannotti, Espinosa and Guadagno.

Relying on the extensive testimony of Decedent’s estate planning counsel, the New Jersey Appellate Division recently upheld the Chancery Division’s admission of Decedent’s Will and subsequent Codicil to probate despite her son’s allegations of undue influence, lack of capacity and forgery. The matter is instructive on proper planning techniques to defend against an anticipated Will contest.

Betsy Schnitzer (“Decedent”) was married to Morris Schnitzer, an attorney with the firm of Connell, Foley & Geiser, and they had two children, Sandra Stern (“Sandra”) and Stephen Schnitzer (“Stephen”), and several grandchildren. Sandra and Stephen are both attorneys.

On April 19, 1995, Betsy and Morris executed reciprocal Wills in which they left their respective residuary estates upon the second to die in equal shares to Sandra and Stephen. This disposition was consistent until Morris’ death on March 8, 1997, when he died leaving Betsy a multi-million dollar estate.

While initially meeting with the Connell Foley firm to update her estate plan, Betsy decided to retain a new firm, Dewey Ballantine (“DB”), who was recommended by Sandra. It turns out, Sandra’s husband used to be a partner at the firm. John Olivieri (“Olivieri”), of DB, consulted with Betsy who requested that he draft a new Will disinheriting Stephen. Betsy had become angry with Stephen who questioned Betsy’s handling of the administration of Morris’ Estate as Executrix. While Betsy’s feelings towards Stephen were well documented and well known, Olivieri advised against disinheriting Stephen, and Betsy agreed.

On August 18, 1998, Betsy executed a Will (the “1998 Will”) and related trust documents after Olivieri reviewed the documents with her and explained the contents. Olivieri testified that the documents were prepared at Betsy’s request, that he had no doubt that Betsy was mentally competent and capable of executing the documents, and that he had no reason to believe that she was being influenced in making decisions. In the 1998 Will, Betsy named Chase Bank (“Chase”) as executor, made specific bequests of personal property to Stephen and to one of Sandra’s daughters, and left the rest of her personal property to her daughter, Sandra. The remainder of her estate was placed in trust, granting 75% to Sandra and 25% to Stephen, with rights to invade principal.

In September, 1999, Chase, as Co-Trustee of a Trust under Morris’ Will for Betsy’s benefit, filed suit against Betsy who was acting Executrix of the Estate to compel an accounting and distribution from Morris’ Estate to the Trust. Betsy was enraged, blaming Stephen for his meddling in her affairs. Although the litigation was settled in 2002, Betsy harbored resentment against Stephen over the suit.

In June 2003, Betsy again retained DB to perform additional work on her estate plan. At the time, Betsy required assistance with her finances. And in February 2004, Sandra called Olivieri and advised that Betsy wanted to leave 75% of her residuary estate to Sandra and the remainder to Sandra’s children. When Olivieri spoke to Betsy to confirm the change in disposition, Betsy was clear, she confirmed that she wanted Sandra to inherit her entire Estate. She stated she was concerned over Sandra’s finances and wanted to disinherit Stephen. Olivieri once again advised Betsy against disinheriting Stephen but she rejected his advice.

On April 14, 2004, a meeting was held at Betsy’s home for about half an hour. Olivieri was present with his associate and a trust officer from Chase, who acted as the witnesses. Sandra had arrived earlier that day and had breakfast with Betsy. Sandra testified she did not speak with Betsy about her estate plan. Sandra was present for the beginning of the meeting when Betsy executed a change to the Trust naming Sandra as co-trustee with Chase, but left thereafter. After she left, Olivieri discussed with Betsy the requested changes to her estate plan. He brought two sets of documents, one set would keep the division of the residuary the same, 75% to Sandra and 25% to Stephen, and the other disinherited Stephen. Betsy was clear, she wanted to disinherit Stephen. It was something she was thinking about for a long time and she was still angry with him over the litigation. Betsy then executed the 2004 Codicil that disinherited Stephen.

Betsy died on October 1, 2007 and Stephen filed a Complaint seeking to set aside the 1998 Will, the 2004 codicil and related Trust documents, alleging undue influence, lack of capacity and a forgery.

Stephen argued that Sandra had a confidential relationship with Decedent, raising a presumption of undue influence. This was rejected by the Court. While Betsy turned to Sandra for companionship and some assistance, particularly in finding a new attorney to do an estate plan for her, Betsy did not rely on Sandra due to a state of weakness or dependence, nor did Sandra dominate Betsy or have superior knowledge or an over-mastering influence over her. Decedent’s scrivener, Olivieri, testified that Betsy had strong opinions on many issues including investment strategy and the disposition of her estate, and there was no evidence of any influence. The Appellate Division therefore affirmed the lower Court’s dismissal of the action.

Practice Notes:

* An unbiased scrivener, meeting alone with a testator, who properly documents the testator’s intentions through hand-written notes or a letter from the testator, is the cornerstone to defending against a Will contest.

* A beneficiary, especially one assisting testator with her daily activities, should avoid actual involvement in the preparation and execution of estate planning documents to avoid any inference of undue influence.

Validity of Undated Will Upheld

In the Matter of the Estate of Albertha Blackwell, 2012 N.J. Super. Unpub. ____ (Docket No.: A-5441-10T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County. Before Judges Lihotz and Waugh.

Appellant, Decedent’s daughter, appeals from the trial Court’s dismissal of her Complaint and admission of the Last Will and Testament of her mother to probate. On appeal, appellant maintains that the Court erred by allowing the Will to be probated because it was undated, not self-proving and otherwise failed to comply with the statutory attestation requirements of a valid will.

Decedent died on November 15, 2008, survived by six of her eleven children, and eight grandchildren. Only one grandchild, A.Q., was a minor, and Decedent had been appointed A.Q.’s guardian after A.Q.’s mother had died.

After Decedent’s death, one of her daughters found Decedent’s Will among her possessions, and she presented the Will for probate. The six page document was drafted by Decedent’s long-time attorney, who notarized the document and observed its execution in the presence of two witnesses who also signed the document. The Will named two of Decedent’s daughters as executors and devised her entire estate to A.Q.

Appellant filed a caveat challenging the Will. In response, the executors filed a complaint seeking to set aside the caveat and have the Will admitted to probate. Appellant filed an Answer and Counterclaim claiming that the Will was invalid or the result of undue influence. Without the benefit of an evidentiary hearing, the trial Court dismissed the caveats and admitted the Will to probate. Appellant appealed, and the trial Court’s order was reversed, with the matter being remanded for a plenary hearing to determine the authenticity and validity of the Will.

The trial Court then conducted a three day hearing, with testimony being presented by the witnesses who witnessed Decedent’s execution of the Will. The trial Court remained unconvinced of appellant’s arguments, and in a written opinion found no evidence to support appellant’s assertion that the Will was not signed by Decedent. The witnesses testified that Decedent acknowledged the document was her Will and voluntarily signed in their presence. The trial Court then ruled that proponents established by clear and convincing evidence that the document was Decedent’s Will, that she signed it voluntarily, that the witnesses signed the self-proving affidavit and witnessed her signature, and that the Will should be admitted to probate.

Appellant filed a motion and the proponents cross-moved for attorney’s fees, which the trial Court declined to consider. On appeal, appellant argues that the trial Court’s ruling was not supported by the evidence. The Appellate Court affirmed the trial Court’s ruling, finding its decision to be based on sufficient evidence contained in the record.

In order to comply with the necessary formalities, a Will must be in writing, signed by the testator and signed by at least two witnesses. N.J.S. 3B:3-2. Also, if a document lacks these formalities, the writing may nevertheless be treated as if it complied with N.J.S. 3B:3-2 if the proponent of the document establishes by clear and convincing evidence that the Decedent intended the document or writing to constitute her Will. N.J.S. 3B:3-3. The trial Court found that despite the omission of a date, two independent witnesses and Decedent’s long time attorney testified that each saw Decedent execute the document, the same document they witnessed, and that Decedent voluntarily signed the document following her express understanding that she intended the document to act as her Will. Appellant failed to refute this testimony. Therefore, the trial Court’s decision is affirmed. In addition, the Appellate Court failed to exercise jurisdiction over the fee issue until it was presented and ruled upon by the trial Court.

Writing Intended as A Will – Unexecuted Copy of Will Admitted to Probate

In the Matter of the Estate of Richard D. Ehrlich, Deceased, 2012 WL 2470122, (N.J.Super.A.D.). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County. Before Judges Parrillo, Alvarez and Skillman.

On June 29, 2012, the New Jersey Appellate Division continued to relax the formalities required for admission of a Will to probate, holding that the unexecuted copy of Decedent’s Will which had purportedly been executed by the Decedent and sent to his attorney-executor for safe-keeping sufficiently represented the Decedent’s final testamentary intent allowing for the document to be admitted to probate as a writing intended as a will under N.J.S.A. 3B:3-3.

Decedent was a trusts and estates attorney in Burlington County, New Jersey for over 50 years. At his death on September 21, 2009, his only next of kin were the surviving children of his predeceased brother, Todd, Jonathan and Pamela. The Decedent had no contact with Todd or Pamela for over 20 years, but maintained a close relationship with Jonathan over the years. Upon learning of Decedent’s death, Jonathan conducted an extensive search of Decedent’s home for a Will. He found an unexecuted copy of a purported Will in Decedent’s desk among numerous other papers. Jonathan filed a Complaint seeking to admit the Will to probate, and Todd and Pamela field an Answer asking the Court to deny probate.

The Court appointed a temporary administrator and ordered a thorough search of Decedent’s home and law office for any other Wills of Decedent. No other Will was ever located.

The unexecuted copy proffered by Jonathan is a detailed 14 page document entitled “Last Will and Testament”, on traditional legal paper, with Decedent’s name and law office address in the margin of each page. The document does not contain the signature of Decedent. It does, however, include a notation in Decedent’s handwriting on the cover page, “Original mailed to H.W. Van Scriver, 5/20/2000”, the named executor under the Will. Van Scriver predeceased the Decedent and an original has yet to be located.

The proffered Will leaves $50,000 to Pamela, $75,000 to Todd, 25% in trust for the benefit of Decedent’s friend, Kathryn Harris, and the remainder to Jonathan. It was undisputed that Decedent prepared the document just before he was to undergo surgery, and on the same day it was purportedly executed, May 20, 2000, Decedent executed a Power of Attorney and Living Will. Years after drafting these documents, Decedent acknowledged to others that he had a Will and wished to delete the bequest to his friend Kathryn as they had a falling out.

The parties filed cross-motions for summary judgment and the trial court admitted the unexecuted Will to probate, finding that Decedent’s hand written notation on the cover page of the Will provided clear and convincing evidence of Decedent’s final assent that he intended the original document to constitute his Last Will and Testament.

At issue on appeal was whether the unexecuted copy of a purportedly executed original document sufficiently represented Decedent’s final testamentary intent to be admitted to probate under N.J.S.A. 3B:3-3.

Under N.J.S.A. 3B:3-3, although a document or writing was not executed with the normal formalities required under the statute, it may still be admitted to probate “if the proponent of the document or writing established by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will…”

Relying on its recent interpretation of the harmless error doctrine under In re Probate of Will and Codicil or Macool, 416 N.J. Super. 298, 311 (App. Div. 2010), the Court held that a writing need not be signed by the testator in order to be admitted to probate. In order to be admitted as a writing intended as a Will under Macool, the proponent must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent’s final testamentary wishes.” Id. at 310.

The Appellate Division went on to find that the Decedent prepared and reviewed the challenged document, that Jonathan, who received the bulk of the Estate was the natural object of his bounty, and the mailing of the document to the executor, even if not signed, reflected Decedent’s final assent of his intention that the document act as his Last Will and Testament. This was bolstered by the testimony reflecting Decedent’s intentions years after its preparation. The Appellate Division found these facts established clear and convincing evidence that the unexecuted document was reviewed and assented to by Decedent and accurately reflected his final testamentary wishes and was properly admitted to probate under Macool.

In dissent, Judge Skillman found that N.J.S.A. 3B:3-3 does not authorize the admission of an unexecuted will to probate. Mere verbal assent to the terms of an unexecuted copy of a will which was not formalized by any signature on the document does not satisfy the statute. Instead, Judge Skillman found that only defectively executed wills may be admitted to probate under N.J.S.A. 3B:3-3.

Attorneys’ Fees will not be Assessed Against Assets that Pass by Operation of Law

In the Matter of the Estate of John Oliva, Jr., Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-2906-04T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County.  Before Judges A. A. Rodriguez and Grall.

Executrix and sole beneficiary of the Estate appeal the lower court’s award of the will contest attorney New Jerseys’s fees to decedent’s parents.

On September 22, 2002, decedent named McHugh as sole beneficiary of his estate under a holographic Will which he signed that day.  Decedent killed himself 9 days later.  Decedent’s parents filed a Will contest resulting in a settlement.  Decedent’s parents then applied to the Court for an award of fees.  The Court awarded them a portion of their fees.  McHugh appealed, claiming that the award of fees was not proper.  There was no finding of undue influence, and the only estate assets were life insurance and pension benefits that passed to McHugh by operation of law.  McHugh argued that there was no fund and that any award should not be payable by her personally or out of the life insurance or pension proceeds which she received as beneficiary.  The Appellate Division agreed, reversing the lower court’s award of fees.

R. 4:42-9(a)(2) permits an allowance of fees from a fund when it would be unfair to saddle the full cost upon a litigant who is in court to advance more than his own interest.  Fees are also allowed under that Rule in a Will contest.  However, the only assets of the estate were assets that passed by operation of law, and decedent’s parents failed to cite any authority as to why they should be included as probate assets in which an award of fees could attach.

Lost Will

In the Matter of the Estate of Allan C. Schenecker, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-4161-09T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County.  Before Judges Graves and Waugh.

Wife of Decedent appeals a decision by the trial court admitting a copy of Decedent’s 2006 Will to probate.  In the Will, Decedent left his residence to his recently married wife, and the remainder to his daughter.  The Court also found that Decedent’s wife was not an omitted spouse under the intestate statutes, and denied her counsel fees.  On appeal, the lower court’s decision admitting the Will to probate was affirmed, but the matter was remanded for further findings of fact on the issue of counsel fees.

In 1988, Decedent met his wife, a real estate broker who assisted Decedent with his real estate purchases over the years.  She managed the properties and they became close.  On November 20, 2006, Decedent purchased a residence in Tinton Falls, New Jersey in which he and his future wife resided.  Although the property was placed in Decedent’s name, it was eventually transferred to both of them with rights of survivorship.  On November 29, 2006, Decedent executed a Will leaving the Tinton Falls property to his future wife and the remainder of his Estate to his daughter.

In 2008, Decedent was diagnosed with lung cancer.  He decided to marry.  Soon thereafter, he died.

Decedent’s wife received letters of administration, forcing the filing of a Complaint by Decedent’s daughter, seeking to probate a copy of the Will.  The Complaint was supported by the testimony of Decedent’s long time attorney, who testified that Decedent intended that the November 26, 2006 Will be his Last Will and Testament and that he had no intentions of changing the disposition.  In deciding the issue of admitting the lost Will to probate, the Court gave great weight to this testimony.

When a missing will is last seen in the possession of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  The proponent of the will has the burden to show by clear and convincing evidence that it was not destroyed.  The Court relied on the testimony of the various witnesses finding that the Decedent intended for the November 26, 2006 to control.

In upholding this decision, the Appellate Court held that the key issue in a case such as this is whether the testator had the intent to revoke the missing Will, even assuming he had the opportunity to do so.  The trial court found by clear and convincing evidence that, whatever may have happened to the original, the Decedent did not intend to revoke it.

As to legal fees, the Appellate Division remanded the matter for further findings of fact, as the record was not clear as to whether the Court made a finding of reasonable cause to contest the Will.

Will Contest – Probable Intent – Stranger to the Adoption Rule

In the Matter of the Estate of Regina Mapes, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0160-10) (Ch. Div. 2011).  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

Decedent, Regina Mapes, died a resident of Essex County in 1963.  her Will dated January 29, 1960 was probated in 1963.  The Will created a trust, granting life income to decedent’s daughter, Edith, who died on December 2, 1971.  Upon Edith’s death, Edith’s son, Harry became successor life beneficiary.  Harry died on July 29, 2009.  Upon Harry’s death, the Trust terminated and the remaining assets were to be paid to Harry’s then living descendants.

Harry had 2 biological children, Cynthia and Kristina.  These children were adopted by Harry’s ex-wife’s second husband in 1966.  Harry specifically excluded his biological children as beneficiaries under his Will.  In 1988, Harry adopted four children after they all attained majority: Brenda, Ricky, Kathy and Rhonda, all children of Harry’s second wife.

The issue is who is a “then living descendant” under the terms of Regina Mapes’ Will.  Although Harry intended to cut off his biological children, the intent of Regina Mapes controls the situation.  The Court went on to hold that the adoption of Harry’s biological children did not cut off their rights to inherit from Regina Mapes, and her probable intent was to include them as beneficiaries.

On the other hand, as to the children adopted by Harry, they are excluded from the definition of descendants under Regina Mapes’ Will under the “Stranger to the Adoption Doctrine”, which holds that an adult adoptee may not share in the estate of a third party who was not a party to the adoption proceeding.  The doctrine creates a presumption that an adult adoptee is not included in a class gift to lineal descendants.  This may be overcome by language in the governing instrument.  But for such language, the Court must discern the testator’s probable intent.  In this case, there was no language to support divergence from the doctrine, and the adult adoptees were therefore excluded from the class.

The Court also awarded attorneys’ fees to counsel for the trustee, but denied fees to counsel for the adult adoptees.

Will Contest – Undue Influence, Lack of Capacity

In the Matter of the Estate of Kevin Timothy Dekis, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-1080-10T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County.  Before Judges Axelrad and Sapp-Peterson.

Decedent’s adult daughter appeals from the lower court’s dismissal of her complaint seeking to set aside decedent’s Will, remove defendant as executrix and remove her as beneficiary of the estate.  Defendant was decedent’s long time companion, who co-habited with the decedent for over 20 years until his death in 2007.  They purchased 2 homes together as joint tenants with rights of survivorship.  In addition, decedent named defendant as beneficiary of his pension plan and life insurance policies.  In 2003, decedent underwent surgery due to blockage in his intestine, during which the bulk of his intestine was removed due to an infection, which became the basis for the filing of a malpractice action.  Decedent had cancer which was treated with chemotherapy.  Despite his illnesses decedent continued to care for himself until his death.

In discovery, defendant detailed her discussions with the decedent over the years regarding the preparation of a Will.  In 2006, defendant again discussed the preparation of a Will.  Defendant prepared a living will and Will for decedent after obtaining a fill in the blank form online.  Defendant testified that she asked decedent the questions so she could enter the information on the form.  Decedent initially said he did not want to leave his family anything and that defendant should get everything.  Defendant then read a warning from the form that if you leave your family nothing, they may be able to challenge the Will later on.  He then decided to leave some specific bequests of personalty to his family, which was typed into the Will.  Decedent reminded defendant that he had left savings bonds in his plaintiff’s name, so he left her the “savings bonds in her name” as a bequest.  Decedent then named defendant as sole remainder beneficiary.  They did not discuss decedent’s assets at the time, including the pending malpractice claim.  Decedent executed the Will at a local bank in front of 2 witnesses and a notary on December 28, 2006, and died 19 days later.  The majority of his estate is made up of the malpractice settlement proceeds of $700,000.

Plaintiff filed suit seeking to have decedent’s Will set aside as the product of undue influence and claiming decedent lacked testamentary capacity.  The lower Court granted defendant summary judgment.  The Court found no evidence of a confidential relationship or suspicious circumstances.  The Court was not satisfied that decedent was in a position of dependency on defendant, finding that decedent and defendant shared a simple division of labors like many households, where defendant was the computer person.  The Court also found that the decedent’s Will was consistent with the disposition of a majority of his assets which passed by operation of law to defendant, and also that decedent was of sound mind.

The Appellate Division affirmed, finding that the lower Court’s decision was amply supported by the facts.  The Court also did not find that defendant engaged in the unauthorized practice of law.

Will Contest – Undue Influence, Lack of Capacity – Barred by Prior Settlement

In the Matter of the Estate of Belva Plain, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0048-2011(Ch. Div. 2011).  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

Plaintiff, decedent’s son, filed a Complaint seeking to set aside decedent’s Last Will and Testament based on undue influence and lack of testamentary capacity.  Decedent’s Will dated March 21, 2007 was probated by the Essex County Surrogate on October 12, 2010.  In her Will, decedent left her entire estate to her two (2) daughters, excluding her son, the plaintiff.

Plaintiff and decedent had engaged in litigation, whereby restraining orders were filed against plaintiff.  They ultimately settled the litigation, with decedent agreeing to provide plaintiff with annual income and plaintiff agreeing not to contest decedent’s Will at her death.  The 2007 Will, and 9 prior Wills, excluded plaintiff as a beneficiary.  Plaintiff’s complaint only sought to set aside the 2007 Will.

In reviewing the settlement agreement, the Court held that plaintiff had given up any right he may have had to contest the probate of decedent’s Will, which was bolstered by the fact that plaintiff continued to receive annual income since the settlement was reached, and the decedent signed a trust to continue these payments to plaintiff for his life.  The fact that decedent did not send letters to plaintiff over the years, which was required by the settlement agreement, was immaterial as plaintiff failed to sue during decedent’s life to assert any contract claims he may have had, and he also received hundreds of thousands of dollars over the years, without objecting to decedent’s failure to write him letters.  Plaintiff’s complaint was therefore dismissed on summary judgment, with prejudice.

Will Contest – Undue Influence

In the Matter of the Estate of Rocco S. Stezzi, Sr., 2011 N.J. Super. Unpub. ____ (Docket No.: A-2660-08T1) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County.  Before Judges Reisner and Sabatino.

Plaintiff appeals from the lower court’s dismissal of his complaint alleging undue influence by his sister, the sole named residuary beneficiary under their father’s Will.  The appeal was unopposed.  Plaintiff claimed that his father’s 2006 Will was the product of undue influence, changing the terms of his alleged prior Will of 1984, which named plaintiff as an equal remainder beneficiary.  Plaintiff submitted a copy of his mother’s 1984 Will which plaintiff claims had reciprocal provisions.

After her father’s death, plaintiff’s sister submitted decedent’s 2006 Will to probate.  Plaintiff filed a Complaint seeking to have the Will and certain beneficiary designations set aside based on lack of capacity and undue influence.  Plaintiff was initially represented by counsel, who was then granted leave to withdraw.  The Court scheduled a case management conference to discuss what needs to be done to prepare the matter for trial.  After a lengthy discussion on the record, the Court decided to summarily dismiss the Complaint.  The lower Court found that plaintiff was not prepared for trial and that the legal basis of his contentions were not sufficiently articulated.  Plaintiff appealed claiming he was denied due process.

On appeal, the Appellate Division vacated the Court’s dismissal, finding that plaintiff was not given sufficient notice that his Complaint could be dismissed as a sanction if he was unable to proffer sufficient evidentiary support for his claims.  The Appellate Division, in vacating the dismissal, also cited the fact that plaintiff was not in violation of any prior Court orders and that no motion for summary judgment had been filed.  The matter was remanded for further proceedings.

Will Contest – Undue Influence Timing of Request for Legal Fees in Unsuccessful Will Contest

In the Matter of the Estate of Nancy L. Hermance, Deceased v. Brett Hermance, 2011 N.J. Super. Unpub. ____ (Docket No.: A-0907-10T4) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County.  Before Judges Cuff and Simonelli.

In this probate action, defendant appeals from the lower court’s award of attorneys’ fees to his sister, who filed an unsuccessful will contest claiming undue influence.  On appeal, defendant claimed that the application for fees was required to be made within twenty days of the entry of final judgment in the matter.  In the case, the request for fees was made approximately two months after the entry of final judgment.

The lower court held that an application for fees may be filed within a reasonable time following entry of final judgment and the motion requesting fees in the matter, filed approximately two months after entry of final judgment, was reasonable under the circumstances.  This was affirmed on appeal.

Will Contest – Undue Influence – Denial of Legal Fees

In the Matter of the Estate of Edward A. Cantor, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-3819-08T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County.  Before Judges Cuff, Sapp-Peterson and Simonelli.

Plaintiff, daughter of the Decedent, filed a Complaint claiming that certain family members and business associates of her father unduly influenced him to disinherit the Plaintiff.  The lower court found no undue influence, but awarded her attorneys’ fees.  On appeal, the Appellate Division affirmed the lower court’s finding that no undue influence occurred, but overturned the award of legal fees to the Plaintiff, as no reasonable cause existed to contest the Decedent’s estate plan.

Decedent died with an Estate of over $90 million.  He was survived by his third wife and two children.  Plaintiff was estranged from her father for many years due to litigation filed by the Plaintiff pertaining to five properties that Decedent had gifted to her.  Her brother, the Defendant herein, tried to dissuade his sister from suing the Decedent, as he would disinherit her.  Plaintiff went ahead with the law suit and Decedent indeed disinherited her.  Plaintiff won the suit against the Decedent, who was ordered to pay her $1.5 million.  Decedent ceased speaking to her, as did her brother.

Plaintiff sued Decedent civilly under the RICO statute, having him arrested.  Decedent also kept a list of all the things his daughter did to him over the years, and read it just prior to his death, claiming that he would not change his Will.  Decedent executed consecutive Wills in April of 1991, another one several months later, and another Will in September of 1997, all disinheriting his daughter.  On June 16, 1999, Decedent executed another Will, naming his son as the sole residuary beneficiary, stating that he made no provision for his daughter.  The signing was taped, and Decedent expressed his clear intentions to disinherit her.  Decedent’s son had nothing to do with the Will and did not attend the signing.

Plaintiff claims that she reunited with Decedent in 2000.  Decedent’s attorney testified that despite some meetings between Decedent and his daughter, Decedent clearly intended to disinherit her.  He also testified that Decedent was strong willed until the end and that there were never any signs of influence by anyone over the Decedent.  Decedent signed a Codicil in October of 2000 reaffirming his intention to disinherit his daughter.  His health was deteriorating but not his mental state, and on April 6, 2001, signed his final Will, again disinheriting his daughter.

Decedent died in 2002 and Plaintiff brought suit.  Relying on the strength of the testimony, the contents of Decedent’s Wills, and the fact that Decedent remained strong-willed until the end, still going into work, the lower court held that no undue influence occurred, but awarded fees.  On appeal, the appellate court upheld the dismissal of the Complaint but overturned the award of fees, finding Plaintiff had no reasonable cause to contest the Will.  Decedent’s intentions were clear.  Plaintiff had nothing more than “hope” that the examination of witnesses would uncover some wrongdoing, and that is not enough to satisfy the reasonable cause standard in awarding fees.

Will Contest/Inter Vivos Transfer – Undue Influence

In the Matter of the Estate of Georgia Tsairis, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0070-2009) (Ch. Div. 2011) and Pamela Conry, et al. v. Bazan, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-C-245-08) (Ch. Div. 2011)  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

These consolidated decisions by the Court addressed the following issues, whether the Deed transfer by decedent on July 21, 2008 was the product of undue influence, whether decedent effectively revoked her May 23, 2000 Will in July, 2008, and whether decedent’s Will of May 23, 2000 was the product of undue influence.

Decedent had 4 children, Peter, Cynthia, Pam and Denise.  She died on October 28, 2008.  Decedent executed a Last Will and Testament on May 23, 2000 leaving her Nutley residence to her daughter, Cynthia, and Cynthia’s husband, in equal shares.  She also executed a Deed transferring her major asset, her Nutley residence, to her daughter, Cynthia, on July 21, 2008.  The 2000 Will was drawn by an attorney chosen by Cynthia, in Cynthia’s presence, days before decedent underwent major hear surgery.  The 2008 Deed transfer was likewise drafted by an attorney chosen by Cynthia, in Cynthia’s presence.

The remaining siblings filed a Complaint seeking to set aside the Deed transfer and a declaration that the 2000 Will was the product of undue influence.  Factually, Peter moved in with decedent in 2000 and took care of her for several years.  At the time, Cynthia visited the decedent daily and was in charge of her care.  Cynthia brought decedent to her attorney where she signed the 2000 Will.  Cynthia held onto the original.  Years later, in 2008, decedent met with two different attorneys intending to do a new Will leaving her house to her son, Peter.  One of these attorneys asked Cynthia to return decedent’s Will, and she refused.  Soon after meeting with these attorneys, decedent left her home and stayed with friends.  It was at this time that Cynthia brought decedent to another attorney who drafted a blank Deed, which she signed, leaving her house to Cynthia.

As to the Deed transfer, the Court found that this was the product of undue influence.  Cynthia orchestrated the signing by bringing decedent to a new attorney, after decedent had clearly expressed an intention to leave the house to Peter.  Cynthia was also appointed as attorney in fact under a Power of Attorney.  The Court found a confidential relationship, shifting the burden of proof on undue influence to Cynthia, which she failed to rebut.

The Court then went on to hold that the 2000 Will was not revoked, as decedent did not physically revoke the document in any way, despite her likely intention and despite the fact that Cynthia refused to turn over the original to decedent’s initial attorney.

However, the Court then went on to find that the 2000 Will was the product of undue influence, finding both a confidential relationship and suspicious circumstances, shifting the burden of proof to Cynthia which she failed to rebut.  The Court then ordered the decedent’s estate disposed of under intestacy.

Will Contest –Undue Influence, Testamentary Capacity, Award of Legal Fees

In the Matter of the Estate of Blanche T. Riordan, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-3819-08T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County.  Before Judges Parrillo, Skillman, and Roe.

Plaintiffs, nieces and nephews of the Decedent, appeal from a judgment from the Chancery Division concluding that decedent had testamentary capacity when she signed her will and that the will was not the product of undue influence.  The trial court awarded a portion of the legal fees incurred by plaintiffs’ counsel, which was also appealed.  The Appellate Division upheld the trial court’s decision, finding adequate proof to sustain their judgment.

Decedent died in June of 2006 at the age of 91.  She was survived by her brother and some nieces and nephews.  Decedent’s will bequeathed $25,000 to a nephew and the remainder of her estate to her surviving brother’s three children.  The will, a holographic will, was drawn by the decedent in the presence of her brother, while her brother’s children, the residuary beneficiaries under the will, waited in another room of decedent’s house.  After she drew the will, decedent was brought to her bank, and her niece and nephew acted as witnesses and a notary at the bank notarized the document.  Decedent’s nephew, who only received $25,000 under the will, filed a complaint seeking to set it aside.

Plaintiff introduced evidence showing that decedent had fractured her back just before she signed the will, and was confused at times.  Decedent’s niece, who witnessed the will and was also a residuary beneficiary, shared a confidential relationship with the decedent.  With the assistance of decedent’s close friends, who testified that although decedent was frail, she was strong willed and was able to make her own decisions at the time she made the will.  Decedent also visited her home in Florida, by herself, after she made the will out.  There was also testimony that decedent adored the residuary beneficiaries.  After hearing the testimony, the trial court found that although a confidential relationship existed, the defendants were successful in rebutting this presumption.  There was no evidence that defendant overpowered the decedent.  In light of the testimony regarding decedent’s health, and the fact that NJ law requires only a very low degree of mental capacity to execute a will, the trial court held that decedent had testamentary capacity at the time she made out the will.  The trial court then awarded legal fees, reducing same, in its discretion, based on the ultimate outcome of the case as well as the size of the estate.  This opinion was upheld on appeal as the Appellate Division believed that there was sufficient evidence to support the trial court’s conclusions.

Will and Trust Contest – Undue Influence and Lack of Capacity

In the Matter of the Probate of the Alleged Will of Joan Pannella, 2011 N.J. Super. Unpub. ____ (Docket No.: BER-P-376-10) (Ch. Div. 2011) Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.

Decedent was survived by 7 children.  She left a Last Will and Testament and Trust Agreement leaving small specific bequests to 2 of these children, with the remainder distributed to the remaining children.  Decedent’s son, Carl, filed a Complaint seeking to admit decedent’s Will to probate and to lift the caveat filed by another of decedent’s sons, Sam.  In his Complaint, Carl alleges that decedent had executed prior Wills and amendments to her Living Trust which were consistent.  Sam, and his sister, Carol, who were left only small bequests filed a counterclaim seeking to set aside the various Wills and Trust agreements based on lack of capacity and undue influence.

The Court took testimony of the decedent’s children and other parties, and admitted the transcripts of the depositions of the scrivener into evidence.  On the issue of lack of capacity, Sam’s counsel conceded that the opinion of his medical expert failed to properly address the issue, and therefore this part of the Complaint was denied.  The medical expert had opined that decedent lacked capacity, utilizing the wrong legal standard, and also opined that Carl had committed undue influence.  This claim was rejected as the wrong legal standard was used.

On the issue of undue influence, the Court cited the testimony of the scrivener and the remaining siblings which were consistent, the decedent was lucid and clear on her intentions.  Decedent had sent letters to Sam and her daughter, Carol, regarding the reasons why she was changing her estate plan.  Sam had borrowed monies from his parents over the years which he failed to pay back, and the decedent considered the payments as his inheritance.  Carol had a fight with her mother because she refused to give decedent back a piece of jewelry, and they had a falling out 2 1/2 years before her death.  These stories were corroborated by the testimony of the witnesses.   In addition, the testimony failed to support a finding of a confidential relationship between decedent and Carl.  Carl was close to his mother, visited her daily, brought her to the attorneys, but the Court was convinced that decedent was strong willed and made her own decisions.  The Court therefore dismissed the claim of undue influence, admitting the Will to probate.

Will Contest – Undue Influence – Timing

In the Matter of the Estate of Victoria Ehmer, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-5041-09T1) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County.  Before Judges Carchman and Graves.

Plaintiff, a son of the decedent, appeals the dismissal of his complaint as untimely.  Plaintiff’s underlying complaint sought to set aside decedent’s will, claiming undue influence and lack of testamentary capacity.  On appeal, the Appellate Division reversed, holding that plaintiff, who filed a separate action in Hudson County before the expiration of the controlling statute (R. 4:85-1), which was ultimately dismissed, should be allowed to proceed in Ocean County in a complaint filed after the dismissal in Hudson County.

Decedent executed 2 wills, 1 in 2001 and the other in 2004.  In the 2001 will, plaintiff, along with his mother, the defendant, and a local church were named as beneficiaries.  In the 2004 will, defendant was named as sole beneficiary.  Decedent died in July of 2008.  In August of 2008, defendant probated decedent’s 2004 will, but did not give notice to plaintiff.  In October of 2008, plaintiff’s father attempted to probate the 2001 Will.  On November 30, 2008, defendant’s attorney sent a letter to the judge in the Hudson County matter stating that the 2004 will was admitted to probate in Ocean County, forwarding copies to all interested parties including the plaintiff.  The Hudson County Chancery judge dismissed the matter by Order entered on December 12, 2008.  On March 16, 2009, plaintiff filed a compliant in Ocean County seeking to set aside the 2004 will as the product of undue influence and claiming that decedent lacked testamentary capacity.  Defendant filed an answer and counterclaim, but did not raise timeliness as a separate defense.

Approximately one year later, defendant filed a summary judgment motion seeking to bar plaintiff’s claim as untimely under R. 4:85-1, as his complaint was not filed within 4 months of probate of the 2004 will.  The trial court agreed, dismissing the matter.  Plaintiff appealed.

R. 4:85-1 requires that a complaint to set aside the probate of a will must be filed within 4 months after probate.  R. 4:85-1, however, incorporate the provisions of R. 4:50-1, permitting relief outside of the 4 month limitation period under appropriate circumstances.  The Appellate Division, citing reference to the trial court’s finding that if the Hudson County matter was transferred instead of dismissed, it would have been within the limitations period, concluded that in the interests of justice, plaintiff’s complaint should be allowed to proceed.

Will Contest –Writing Intended as a Will

In re Estate of Albertha Blackwell, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0057-09) (Chan. Ct. 2011).  On remand to the Superior Court of New Jersey, Chancery Division, Essex County.

At issue is whether the Last Will and Testament of Albertha Blackwell may be admitted to probate.       The Will consisted of six (6) pages.  Decedent signed the first five (5) pages and affixed her signature before the witnesses on the fifth page.  The witnesses also signed the fifth and sixth page.  Decedent failed to sign the side of page six (6), as she did with the other pages, and also failed to sign the attestation clause on the sixth page.  The trial court on the return date of the Order to Show Cause, and without holding a plenary hearing, found that the Will was not self-proved, but was still a valid Will as it was signed by the Decedent, and also witnessed.

An appeal was taken, and the Appellate Court found that a will may be admitted to probate under circumstances where it does not literally comply with the statutory attestation requirements so long as there was “substantial compliance”.  The matter was therefore remanded to the trial court for a plenary hearing on whether the proponent of the Will can establish by clear and convincing evidence that there was substantial compliance with the formalities required by N.J.S.A. 3B:3-2, that (i) the Will is in writing, (ii) signed by the testator, and (iii) signed by two (2) witnesses.  Additionally, under N.J.S.A. 3B:3-3, a document not in strict compliance with N.J.S.A. 3B:3-2 may be admitted to probate if the proponent of the document or writing established by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s Will.

After holding a plenary hearing, the trial court found that the plaintiff established, through clear and convincing evidence, that the document at issue is the Last Will and Testament of Albertha Blackwell, that she signed it voluntarily, that the witnesses signed the self-proving affidavit and witnessed her signature, and that the will should be admitted to probate.  The defendant challenged the signature but did not provide any evidence that is was a forgery.  The scrivener of the Will, a long time attorney for Albertha Blackwell, testified on behalf of plaintiff that she recalls that the Will was signed in her office on March 1, 2007, that there was no coercion, that the witnesses also signed the document and that Ms. Blackwell intended that the document was her Will.  The Court held that the document was both in substantial compliance with N.J.S.A. 3B:3-2 and was intended to constitute Ms. Blackwell’s Will pursuant to N.J.S.A. 3B:3-2, and was therefore admitted to probate.

Will Contest –Writing Intended as a Will

In the Matter of the Estate of Inez Bull, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0084-10) (Ch. Div. 2011).  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

Decedent drafted a holographic Will on November 20, 1949 and a subsequent holographic Will on February 7, 1977 (the “1977 Will”).  The 1977 Will expressly disinherits any part of decedent’s family, and leaves her “Ole Bull Museum” to the Commonwealth of Pennsylvania and to the Norwegian government to run the museum.  The Will had internal conflicts.  In any event, the Court determined that the 1977 Will should be admitted to probate as a writing intended as a Will as the material portions of the document are handwritten, the document is signed by decedent, in her own hand, and it is clear that decedent intended the document to act as her Will by using the phrase, “Last Will and testament of Inez Bull.”  This, despite the conflicting terms and the fact that no executor was appointed.  The Court admitted the Will to probate and appointed the temporary administrator as permanent administrator, leaving to future proceedings the mechanics of abiding by decedent’s intentions as reflected in the 1977 Will.

Will Contest –Writing Intended as a Will

In the Matter of the Estate of Thomas J. Duffy, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-3400-09T1) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County.  Before Judges Fisher, Sapp-Peterson and Fasciale.

This appeal involved the interpretation of Decedent’s Will, which failed to mention the disposition of his residuary estate in the residuary clause.  The Will left his “jewelry, personal effects” to his friend, Diane, and if she predeceased, the “entire estate” to his veterinarian for the care of his pets.  Decedent’s estranged wife and daughter sued, claiming that the decedent’s assets should be distributed under intestacy.

The lower court held that the Will had a gap, to which the probable intent doctrine applied.  In applying the doctrine, the court held that the decedent would have intended that his residuary estate be distributed to his friend, Diane.  The court, after holding a plenary hearing, found that the decedent’s intentions were clear inasmuch as he did not have any relationship with his estranged wife and daughter, and there argument that a partial intestacy should control was not convincing in this context.

Will Contest –Writing Intended as a Will

In the Matter of the Estate of Leigh Cameron Randall, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0199-10) (Ch. Div. 2011).  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

Decedent died a resident of Arizona owning real property located at 861 Broad Street, Newark, New Jersey.  She did not execute a formal Will.  However, plaintiff, one of decedent’s 6 first cousins, sought probate of a letter allegedly written by decedent in July of 1998 as a writing intended as a will.  There is no signature on the pages offered for probate.  The decedent made marks on some of the pages.  She was never married and had no children.

Under New Jersey law, a document that was not executed in compliance with the Will statute may still be admitted as a writing intended as a Will if the proponent of the document establishes by clear and convincing evidence that the decedent intended that the writing to constitute her Will.

Plaintiff received the 1998 letter from decedent, assuming she had a Will and considered the letter to be informational only, as it listed her assets, discussed a testamentary trust and listed him and his sisters as beneficiaries.  After decedent’s death, plaintiff went to her Arizona home and found a photocopy of page 1 of the 1998 letter which included original notations in the margin.  The Court was convinced that the handwritten notations on the margin of page 1 of the letter should be given testamentary effect, as the Court found that it was obvious that decedent believed that the 1998 letter and subsequent notations was an important document capable of disposing of her property at her death.  It was therefore admitted as a writing intended as a Will.

Will Contest –Writing Intended as a Will

In the Matter of the Estate of William W. Walb, Jr., Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-1368-09T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County.  Before Judges Cuff, Simonelli and Fasciale.

 

In this matter, the lower court admitted a typed and signed addendum to Decedent’s Will disposing of his tangible personal property.  On appeal, the Appellate Division held that a plenary hearing was required to determine whether the decedent intended the addendum to constitute an addition to or alteration of the Will.

Decedent executed the Will on January 24, 2003, devising certain amounts and percentages of his estate to some friends, with 81% being devised to Albright College.  In the Will, Decedent referred to a list which he would prepare detailing the distribution of certain personal property.  After executing the will, Decedent made two inter vivos gifts of stock to Albright College.  Shortly thereafter, Decedent executed a document dated February 8, 2008 entitled “Addendum to Last Will and Testament of William W. Walb, Jr.”  The addendum devised certain personal property to his friend and nephew, devised his residence to his friends, and changed the distribution of his net estate.

Decedent died on September 19, 2008 and the Will was probated soon thereafter.  After probate, the executor discovered the addendum.  An Order to Show Cause and Complaint was filed seeking to admit the addendum as an addition to or alteration of the Will, requiring a showing of clear and convincing evidence.

The lower court failed to hold a plenary hearing, instead ruling that the addendum only controlled the disposition of Decedent’s personal property as the executor failed to prove by clear and convincing evidence that Decedent intended the addendum to be an addition or alteration of his Will.

On appeal, the Appellate Division remanded the matter for a plenary hearing, finding that there are genuine issues of material fact as to whether the Decedent intended to alter his Will, and that the lower court should not have ruled on the matter in a summary fashion without a hearing.

Will Contest –Attorneys’ Fees

In the Matter of the Probate of the Alleged Will of Gabriela Sipko, deceased, 2010 N.J. Super. Unpub. LEXIS 480 (Docket No.: A-3622-08T1 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Bergen County.  Before Judges Carchman and Parillo.

The Appellate Court upheld the lower court’s award of legal fees against the Estate to a successful contestant in a Will contest.  The decision to award attorneys’ fees and the quantum of the reward, rests within the discretion of the trial judge.  In this matter, the trial court did not abuse its discretion.

Decedent created a pour-over Will and trust held for the benefit of her husband, with the remainder distributed in equal shares to her 2 children.  Thereafter, Decedent executed a codicil to her Will which excluded her one son, Robert, from sharing in her estate and trust.  This codicil was witnessed by only one witness, and then notarized.  Robert contested the codicil claiming it did not meet the statutory requirements and was the product of undue influence.

The lower court found that the notary in fact did not act as a witness.  Therefore, the codicil did not meet the statutory requirement for two witnesses, and granted Robert’s motion to set aside the codicil.

Thereafter, Robert moved for counsel fees pursuant to R. 4:49-2(a)(3).  The court reduced Robert’s request by 20%, and awarded him $113,358.40 in legal fees.  An appeal as to this award was taken.

The appellate court upheld the lower court’s award, highlighting that court’s finding that this is a case that should not have been brought in light of the failure to comply with the statute governing the signing of wills.  Instead, it was brought in light of the family dysfunction.  Robert does not have the financial means to fund the litigation and it is significant that he prevailed in the suit.

As to the quantum of fees, the trial court’s determination is given great deference.  The lower court considered the work performed as set forth in the attorneys’ affidavit of services, and decided to reduce the fee by 20% in light of ancillary corporate work performed on the file.  Based on the lower court’s findings of fact, the award of fees was upheld.

Will Contest – Probable Intent

In the Matter of the Estate of Francis Marie Ackerson Yetter, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-0971-09T3) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County.  Before Judges R. B. Coleman and C. L. Miniman.

This appeal involves the court’s interpretation of a provision in Decedent’s will under the probable intent doctrine.  The trial court took the literal meaning of the devise to Decedent’s great-grandchildren refusing to extend the gift to after born great-grandchildren, while the appellate court disagreed, extending the doctrine of probable intent based on the surrounding circumstances.

Decedent died on June 20, 2007 leaving a Last Will and Testament dated July 9, 2001.  In the Will, Decedent specifically devised her Bank of New York stock worth $500,000 in equal shares to her great-grandchildren, naming them in the devise.  After the Will was prepared and before Decedent died, 2 additional great grandchildren were born.  Decedent did not change the terms of her will before her death.

A complaint was filed by a guardian ad litem which was supported by all interested parties, claiming that the probable intent doctrine should control, requesting the court to declare the devise as a class gift.  The trial court, relying on the literal meaning of the devise, “to great grandchild A and B”, refused to declare it as a class gift.  On appeal, the appellate court disagreed, finding that the trial court failed to give adequate consideration to the rule of probable intent, despite the lack of any ambiguity in the devise.

The appellate court cited the fact that the great-grandchildren named in the will were treated equally, there was no evidence that the Decedent did not otherwise wish to treat all great-grandchildren equally, the fact that Decedent unintentionally failed to revise the will and the fact that all interested parties were in agreement.  The court was satisfied that there was sufficient indicia from the circumstances and the overall testamentary scheme of the will that Decedent did not intend to omit after-born great-grandchildren from the bequest.

Will Contest – Time Barred by R. 4:85-1

In the Matter of the Estate of Thomas Antonelli, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-2502-09T2) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County.  Before Judges Reisner and Alvarez.

In this matter, the Court affirmed the lower court’s dismissal of a complaint filed by Decedent’s daughter seeking to set aside his probated Will as untimely under R. 4:85-1.

Plaintiff, a daughter of the Decedent, who lived in Pennsylvania, claimed that she met the requirements of R.4:85-2 which permits late filings where there is good cause for the delay and the absence of prejudice to the parties.

Decedent died on December 18, 2008.  His will dated November 27, 2007 was admitted to probate on January 15, 2009 and plaintiff did not retain counsel until April 2009.  It is undisputed that Decedent signed a prior will leaving a portion of Decedent’s estate to plaintiff, while the November 2007 will left everything to defendant.

R. 4:85-1 requires an out-of-state litigant to file a complaint contesting the will within 6 months of receiving notice.  A filing was therefore required by July 15, 2009, but not filed until August 14, 2009.  Counsel for plaintiff certified that the reason for delay was due to family circumstances and visits from his family.  The lower court found that this was a mere oversight by counsel and not “good cause” to extend the period to file the complaint.  The appellate court affirmed, finding no substantial reason that afforded a legal excuse for the default.  Mere oversight is generally not a sufficient basis for an extension of time.

Will Contest – Time Barred by R. 4:85-1

In the Matter of the Estate of Oliver T. Robinson, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-0353-09T1) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County.  Before Judges Wefing, Baxter and Koblitz.

Plaintiff appealed the court’s denial of his application to set aside Decedent’s will based on the claim that plaintiff did not receive adequate notice as the biological son of the Decedent.

Plaintiff claimed to be the biological son of the Decedent and sought to set aside Decedent’s will, which left Decedent’s estate to his mother and siblings.  Plaintiff’s complaint was filed 4 years after Decedent’s death.  The court dismissed the complaint after a paternity suit was tried and the court found that plaintiff failed to provide proof of paternity.  Neither the Decedent nor his siblings ever acknowledged plaintiff as Decedent’s biological son.  In addition, prior to the conclusion of the paternity suit, plaintiff was given the ability to exhume Decedent’s body to perform a DNA test, which he failed to do.  The court also failed to find “good cause” to extend the limitations period under Rule 4:85-1 as plaintiff’s complaint was filed 4 years after he found out that Decedent had passed.  The trial court’s dismissal of the complaint was affirmed.

Will Contest and Inter Vivos Transfers – Undue Influence – Standard of Review

In the Matter of the Estate of Harriet Alexandra Sydlar, deceased, 2010 N.J. Super. Unpub. (Docket No.: A-1467-09T2 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County.  Before Judges Cuff, Sapp-Peterson and Simonelli.

This case involved an appeal from a trial court’s order dismissing the Complaint filed by Decedent’s daughters seeking to set aside Decedent’s Will and certain inter vivos transfers which they claimed were the product of undue influence exerted over the Decedent by her grand-daughter.  The Will and transfers in question were executed just prior to the Decedent’s demise.  Plaintiffs established a confidential relationship and suspicious circumstances and were therefore entitled to the presumption of undue influence, thereby shifting the burden of proof to Defendant to establish that the Will and transfers were the product of Decedent’s free will.  The trial court did not find Defendants’ testimony credible and, relying on what seemed to be a preponderance of the evidence standard, issued a judgment in favor of the Plaintiff.

On appeal, the Defendants claim that the court should have been guided by a clear and convincing evidence standard and also that the court erred in misapplying the standard to the facts.  The trial court seemed to apply a preponderance of the evidence standard to both the questions pertaining to the Will as well as the inter vivos transfers.  In inter vivos transfer cases involving undue influence, the court should apply a standard of clear and convincing evidence.  The matter was therefore remanded to the trial court for a determination of whether the evidence is clear and convincing as to the inter vivos transfers.

Will Contest – Undue Influence

In the Matter of the Estate of Lucille Sand, deceased, 2010 N.J. Super. Unpub. (Docket No.: A-1856-08T1 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County.  Before Judges Baxter and Koblitz.

This matter involved an appeal from the trial court’s dismissal of plaintiff’s caveat and admission of Decedent’s will to probate over claims of undue influence, fraud, lack of testamentary capacity and forgery.

Decedent died in 2008 leaving a Last Will and Testament dated December 4, 2002, and a codicil dated in 2005, wherein she specifically bequeathed $25,000 to her daughter, Sandra, with the remainder of her estate distributed in equal shares to her other three daughters.  The will included an in terrorem clause as well.  Sandra was estranged from Decedent for many years and the application for probate filed by the executors, two of Decedent’s children, sought probate of Decedent’s will.  It was supported by separate affidavits of Decedent’s estate planning attorneys who certified that Decedent was of sound mind and was not subject to undue influence when they discussed with her the terms of her will and codicil and her intentions to leave only a small bequest to Sandra.  In opposition to probate, Sandra merely opined that decedent would not have treated her and her siblings differently, there was no other evidence produced.  There was also no evidence of lack of capacity.  Not having met her burden of proof by clear and convincing evidence, the court granted summary judgment, which was upheld on appeal.

Will Contest – Undue Influence – Attorneys’ Fees

In the Matter of the Estate of Maria Krasheninnkoff, deceased, 2010 N.J. Super. Unpub. LEXIS 195 (Docket No.: A-4220-08T32 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County.  Before Judges Alvarez and Coburn.

The Appellate Court overturned the lower court’s award of legal fees to an unsuccessful contestant in a Will contest.

Plaintiff originally brought suit against Defendant requiring him to vacate the Decedent’s premises which were owned jointly with Plaintiff.  Defendant refused to vacate.  After several motion hearings, Plaintiff discovered that Defendant had obtained letters testamentary from the Ocean County Surrogate falsely claiming to be a relative of the Decedent.  The matters were consolidated and a few days prior to trial, Defendant fired his counsel and appeared pro se.

The lower court found that Defendant had engaged in undue influence and set aside the will in which Defendant relied.  The court probated the earlier will in which Plaintiff was the beneficiary.  Defendant was eventually removed from the Decedent’s premises by the Ocean County Sheriff.

Defendant’s attorney filed an application for fees, which was opposed by Plaintiff’s counsel, but this opposition was never received by the court.  A copy of the order awarding the fees was not served on Plaintiff’s counsel.  Only after inquiring about the motion did Plaintiff’s attorney discover that it was granted.  The application for reconsideration was denied.

Plaintiff appealed the award of fees claiming that the court erred as Defendant was found to have committed undue influence, and also failed to pay the ongoing carrying charges of Decedent’s premises while he lived there.

The appellate court reversed the award of fees, finding that where the wrongful conduct of one party triggers otherwise unnecessary litigation, no allowance of counsel fees will be made to the wrongdoer.

Will Contest –Writing Intended as a Will

In the Matter of the Probate of the Alleged Will and Codicil of Macool, Deceased, 416 N.J. Super. 298 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County.

In this case, the Appellate Division affirmed the trial court’s order declining to admit a will which was not reviewed by Decedent prior to her death, even though the proposed Will contained a majority of the provisions requested by the Decedent.

Decedent had several step-children, which she raised with her husband, and was also quite fond of her niece.  Her attorney had previously prepared Wills for her in 1996 and a codicil in 2007.  After her husband died, Decedent visited her attorney requesting that a new Will be prepared on her behalf.  She gave the attorney a hand-written note that identified the name and addresses of beneficiaries, along with a list of specific bequests.  The Decedent did not sign her notes.

After discussing her notes and intentions with the Decedent, the attorney dictated the entire will while she was in his office.  Either that afternoon or the next morning, the attorney’s secretary typed up a draft Will.

After discussing her Will with her attorney, the Decedent left his office with the intentions of having lunch nearby.  According to her attorney, Decedent planned on setting up an appointment to review the Will after the attorney had reviewed it.  Decedent passed away one hour after leaving the office, without having reviewed the terms of the draft Will.

Decedent’s niece, a beneficiary under the draft Will, filed an action seeking its probate as a writing intended as a Will under NJSA §3B:3-3.

Although the draft Will contained a majority of the provisions discussed with the Decedent, the Decedent never reviewed the terms of the draft Will.  The trial court found insufficient evidence to conclude that the Decedent intended the draft to act as her Will.

The trial court went on to conclude that NJSA §3B:3-3 required that a writing bear the signature of the testator in order to be admitted to probate.  The Appellate Court disagreed.

The Appellate Court held that in order for a writing intended as a Will to be admitted to probate under NJSA §3B:3-3, the proponent of the writing must prove, “by clear and convincing evidence, that: (1) the Decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.  Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the Decedent’s final testamentary wishes.”  The Court also held that that a writing intended as a will need not be signed by the testator in order to be admitted to probate.

Will Contest –Writing Intended as a Will

In re Estate of Albertha Blackwell, 2010 N.J. Super. Unpub. ____ (Docket No.: A-4816-08T3 (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Essex County.

An appeal was filed seeking to set aside trial court’s order admitting Decedent’s Last Will and Testament to probate for failure to meet the statutory requirements.

The Will consisted of six (6) pages.  Decedent signed the first five (5) pages and affixed her signature before the witnesses on the fifth page.  The witnesses also signed the fifth and sixth page.  Decedent failed to sign the side of page six (6), as she did with the other pages, and also failed to sign the attestation clause on the sixth page.  The trial court on the return date of the Order to Show Cause, and without holding a plenary hearing, found that the Will was not self-proved, but was still a valid Will as it was signed by the Decedent, and also witnessed.

The Appellate Court found that a will may be admitted to probate under circumstances where it does not literally comply with the statutory attestation requirements if there was substantial compliance.  The matter was remanded to the trial court for a plenary hearing on whether the proponent of the Will can establish by clear and convincing evidence that there was substantial compliance with the formalities required by N.J.S.A. 3B:3-2, that (i) the Will is in writing, (ii) signed by the testator, and (iii) signed by two (2) witnesses.

Will Contest by Attorney In Fact

Poku v. Transamerica Annuity Service Corporation, the Estate of Richard Peprah, et al., 2009 N.J. Super. Unpub. LEXIS 3152 (Docket No.: A-4014-08T2) (App. Div. 2009).  Before Judges Lisa and Baxter.

Issue:  Does Plaintiff, as attorney in fact for the Decedent during his life, have a right to a claim to all of Decedent’s assets after his death in lieu of an Executor?

Holding:  No.  This matter is an appeal of the trial Court’s grant of summary judgment in favor of the Defendants.  Plaintiff brought an action challenging her son’s Will and the transfer of the son’s home to his wife.

Plaintiff framed the issue on appeal as follows:  Plaintiff having Power of Attorney has the right to decide how to manage her son’s assets and therefore should not be denied the right to claim all assets belonging to her son.  On appeal, in support of her allegations of undue influence and lack of mental capacity, Plaintiff sought to introduce a medical report pertaining to Decedent’s mental capacity at the time he drafted his Will and transferred his home to one of the Defendants.  However, Plaintiff did not file the medical report in response to the motion for summary judgment, in fact, no opposition was filed.  The trial Court’s grant of summary judgment was therefore affirmed.

Will Contest – Denial of Probate – Holographic Will

In the Matter of the Probate of the Alleged Will of Mario Conti, deceased, 2009 N.J. Super. Unpub. (Docket No.: A-2638-07T3) (App. Div. 2009).  Before Judges Wefing, Yannotti and LeWinn.

Issue:  Are the handwritten notes of the Decedent entitled “Last Will and Testament”, which were notarized in Pennsylvania, a valid holographic Will?

Holding:  No.  The trial Court refused probate as the document in question was not properly executed in accordance with the laws of Pennsylvania, where it was executed.  While the appeal was pending, the administrator of the Estate discovered a prior Will of the Decedent which was properly executed and the matter was remanded for further proceedings.

Will Contest – Dismissal for Failure to Provide Discovery

In re Estate of Bernard Olcott, deceased, 2009 N.J. Super. Unpub. LEXIS 996 (Docket No.: A-0927-08T1) (App. Div. 2009).  Before Judges Skillman and Grall.

Issue:  Is it proper to grant summary judgment in favor of an estate where a contestant claims he did not receive notice of the probate of the Decedent’s Will, then fails to provide requested discovery or to attend a plenary summary judgment hearing?

Holding:  Yes.  The contestant claims that the Decedent executed a subsequent Will after the Will that was probated.  The contestant lived in the Bahamas and claimed that he did not receive notice of the probate of the Decedent’s prior Will, despite testimony to the contrary.  The contestant failed to respond to the estate’s discovery requests, failed to file the new Will in the probate Court, and the Court found no support for contestant’s position other than a conclusory statement that he was not provided with notice.  Therefore, the contestant’s claims are barred as being untimely.

Will Contest – Dismissal of Caveat

In re Estate of Donald Towbin, deceased, 2009 N.J. Super. Unpub. LEXIS 1746 (Docket No.: A-0161-08T3) (App. Div. 2009).  Before Judges Sapp-Peterson and Alvarez.

Issue:  Was the trial Court’s dismissal of the caveat and admission of the Decedent’s Will to probate proper in light of the parties ante-nuptial agreement wherein plaintiff waived her rights to the Decedent’s estate?

Holding:  Yes.  Plaintiff waived her rights in the Decedent’s estate by signing an ante-nuptial agreement after full disclosure.  Plaintiff sought to set aside the ante-nuptial agreement but failed to offer clear and convincing evidence as to why it should be set aside.  Generally, the grounds for challenging an ante-nuptial agreement include equitable considerations, such as unconscionability of the agreement, failure to disclose and similar concerns, none of which exist here.  The Court did not find a genuine issue of material fact to allow the caveat to stand and the matter to proceed to discovery.  Decedent provided for payment required by the ante-nuptial agreement in a trust established by him, and therefore plaintiff’s counterclaim was dismissed, and the lower Court’s decision affirmed on appeal.

Will Contest – Federal Jurisdiction

Frederic K. Berman, Executor of the Estate of Denise Berman, deceased v. Charles I. Berman and Matthew Wilt, 2009 U.S. Dist. LEXIS 48179 (Docket No.: Civil No. 07-2506 (JBS/AMD))(U.S.D.C. 2009).  Before Judge Simandle.

Issue:  Does the federal Court have jurisdiction to hear a dispute filed by an executor of a New Jersey estate seeking to recoup assets allegedly misappropriated by Decedent’s brother prior to Decedent’s death after the matter was removed to federal Court by Defendant/counterclaimaint who sought to aside Decedent’s Will as the product of undue influence and/or fraud?

Holding:  No; the probate exception applies and the federal Court does not have jurisdiction to hear a Will contest.  Jurisdiction is properly laid in the Superior Court of New Jersey.

Plaintiff, as executor of his sister’s estate, sought to recover assets allegedly misappropriated from her estate before her death.  Decedent was a beneficiary of her father’s estate and due to health reasons, was unable to manage her affairs.  Her brother, the defendant herein, managed Decedent’s assets pursuant to an informal trust.  Plaintiff brought suit in the Superior Court of New Jersey, Chancery Division, Probate Part, seeking to recover these assets and an accounting.  Defendant timely removed the matter to federal Court and counterclaimed that the Decedent’s Will naming Plaintiff as Executor was the product of undue influence and Decedent lacked testamentary capacity.  Plaintiff filed a motion seeking to remand the matter to the probate Court, arguing that the district Court lacked subject matter jurisdiction.

The Supreme Court has long recognized a probate exception to otherwise proper federal jurisdiction.  In the event that the probate exception applies, then the federal Court lacks jurisdiction.  The probate exception is applicable only under three specific circumstances, when the federal Court is petitioned to (i) probate or annul a will, (ii) administer a decedent’s estate, or (iii) assume in rem jurisdiction over property that is in the custody of the probate Court.

Because the Defendant seeks a declaration that Decedent’s Will is void or unenforceable, the federal Court lacks jurisdiction to entertain the claim.  The Court is also unable to exercise supplemental jurisdiction over the matter.

The matter was remanded to the Superior Court of New Jersey, Chancery Division, Probate Part for further proceedings.

Will Contest – Oral Agreement

Cohen v. Miller, et al., 2009 N.J. Super. Unpub. LEXIS 2627 (Docket No.: A-3721-07T1) (App. Div. 2009).  Before Judges Fisher, Sapp-Peterson and Espinosa.

Issue:  Is an oral agreement by the Decedent to split her assets between her 2 children enforceable?

Holding:  No, N.J.S.A. 3B:1-4 precludes enforcement.

Decedent left a Will leaving her entire estate to her son.  Over 5 years after receiving notice of probate, Plaintiff filed a complaint alleging that the Will should be set aside.  The Court dismissed the complaint based on the time restraints contained in R. 4:85-1 governing Will contests.

Plaintiff also alleged that she entered into an oral agreement with her brother and the Decedent that the Decedent’s assets would be split equally between the siblings at her death.  The Court also dismissed this part of the complaint pursuant to N.J.S.A. 3B:1-4 as the alleged agreement was not in writing.  The alleged agreement with her mother could not be enforced absent either a will provision expressing the contract’s material provisions; a reference in the will to a contract and extrinsic evidence proving the terms of the contract; or a writing signed by the Decedent evidencing the contract.  None of these requirements were met and the Complaint was therefore dismissed on summary judgment.

Will Contest – Probable Intent

In re Estate of Philomena Sica v. Ronald DeVito, Ralph DeVito and 10th Group, LLC, 2009 N.J. Super. Unpub. LEXIS 2062 (Docket No.: A-4951-06T1) (App. Div. 2009).  Before Judges Carchman and Sabatino.

Issue:  Is the Decedent’s grandson entitled to share in Decedent’s residuary estate pursuant to the terms of her Will which provided for a distribution of a predeceased child’s share of the estate to his or her issue?

Holding:  Yes.

Decedent had 9 children.  Her Will left her residuary estate to her daughter, Geraldine, “until such time as she remarries.  In the event of her marriage or upon her death said property is to be divided equally between my said children…””In the event of the death of any of the above mentioned children prior to my death and or prior to the marriage of my said daughter Geraldine Sica, the share of said deceased child is to be devised to his or her child or children.”

Geraldine never remarried and at her death, only 1 child of the Decedent survived.  Despite the fact that there were several surviving grandchildren and great-grandchildren, Decedent’s only surviving child, Anna, when applying for Letters of Administration, named only herself and her children as heirs.  Anna was appointed as Administratrix and conveyed Decedent’s residence to herself as sole heir.  Anna died leaving a Will which was probated by the Essex County Surrogate.  Anna left her entire estate to her children, Ronald DeVito, Ralph DeVito and Mary Ann Campanella.  As Executor of Anna’s Estate, Ronald DeVito conveyed the residence to 10th Group, LLC, and a mortgage was taken out.

Decedent’s grandchild brought suit challenging Anna’s interpretation of Decedent’s Will.  The trial Court interpreted the Will to provide for a division of equal shares for the issue of each predeceased child of the Decedent.  It did so by determining Decedent’s probable intent.  In interpreting a Will, the Court’s aim is to ascertain the intent of the testator.  Under the probable intent doctrine, NJ Courts construe Wills to ascertain and give effect to the probable intention of the testator.  The doctrine has been used to clarify ambiguities in a Will  In discerning the Decedent’s probable intent, the Court could not accept that only “upon marriage” would all of the issue of a predeceased child of the Decedent share in the residuary estate.  Decedent intended to provide for her daughter, Geraldine, and upon her death or marriage, then her estate (consisting of a house), would be divided and distributed to Decedent’s surviving children, per stirpes.  There is no other evidence supporting Decedent’s intention to divest the issue of a predeceased child in the event that Geraldine does not marry.

Will Contest – Undue Influence

In re Harry Sable, An Incapacitated Person, Michael Sable v. Barry Sable, 2009 N.J. Super. Unpub. LEXIS 334 (Docket No.: A-3743-06T2) (App. Div. 2009).  Before Judges Stern, A. A. Rodriguez and Collester.

Issue #1:  Is a non-treating expert psychiatrist’s opinion admissible in an undue influence case?

Holding:  Yes.  Under the rules of evidence, an expert’s opinion may be based upon facts or data of the type reasonably relied on by experts in that field.  Bare conclusions unsupported by factual evidence are inadmissible as a net opinion.  On appeal, it was argued that the expert relied on mini-mental exam scores to determine capacity that he ultimately agreed were inaccurate.  In fact, the expert, in preparing his report, reviewed the Incapacitated Person’s medical files and reports, performed his own examination of the Incapacitated Person, interviews with the treating physicians and his own observations.  Based on the foregoing, the expert’s opinion was not a net opinion and was properly considered by the lower Court.

Issue #2:  Is it proper for a Court to consider the validity of a will while the testator is still living?

Holding:  Yes.  The case of In re Niles, 176 N.J. 282, 289-90, 823 A.2d 1 (2003), stands as authority for the proposition that when a live testator is adjudicated incompetent as of a particular date, any documents executed subsequent to that date may be invalidated.

This action was brought for an adjudication of incompetency and to invalidate all of the documents, including the Power of Attorney, Advanced Directive and Will, which were executed after a certain date.  The same proofs to invalidate the Power of Attorney would apply to invalidating the Will and there is no need for separate trial.  The Court upheld the lower Court’s findings of incapacity and the setting aside of all estate planning documents signed after the date of said incapacity.

Issue #3:  What is the burden of proof to rebut a presumption of undue influence where the testator and the alleged influencer were represented by the same attorney?

Holding:  The presumption of undue influence must be rebutted by clear and convincing evidence, because the attorney who prepared the Will represented both the testator and the proponent of the new Will and because there was no proof that the attorney disclosed the conflict of interest to the testator.  The normal “preponderance of the evidence” standard therefore did not apply.

Issue #4:  Was the assessment of damages for breach of fiduciary duty proper?

Holding:  Yes.  The Court found that the defendant misappropriated monies of the testator, failed to properly manage his finances, took undocumented loans, failed to properly account for expenses paid on behalf of the testator, and expended monies of the estate to litigate the matter.  If the exercise of power concerning the estate is improper, the fiduciary is liable to interested parties for damage or loss resulting from breach of his fiduciary duty.  See N.J.S.A. 3B:14-35.  Here, the lower Court’s findings were upheld.

Issue #5:  Is the assessment of counsel fees against an agent under a Power of Attorney who committed undue influence proper?

Holding:  Yes.  Relying on In re Niles, the award of counsel fees against the defendant was proper.  Even though defendant was not an executor or trustee as was the case in Niles, he controlled the testator’s estate under the Power of Attorney and he influenced the testator to change his estate plan to benefit himself.  In Niles, the Court held that when an executor or trustee commits the pernicious tort of undue influence, it should result in an award  of counsel fees and costs against said tortfeasor.  In this matter, as in Niles, the award of attorneys fees was based on the rationale that the estate should be made whole when undue influence results in the development or modification of estate documents that create or expand the fiduciary’s beneficial interest in the estate.  The award of attorneys fees against defendant was therefore upheld.