Recent Cases:
Collection of Judgment Against Debtor’s Inheritance
In the Matter of the Estate of Norton D. Smith, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-4137-08T3) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County. Before Judges Graves and Sabatino.
The appeal arises out of a judgment creditor’s attempt to collect a debt from debtor, by attaching sums due debtor from Decedent’s estate as beneficiary.
Judgment was entered against debtor for failure to pay rent. Decedent’s son was appointed as administrator of the estate, sold Decedent’s residence and made partial distributions. Creditor sued the estate for the distribution made to debtor. The probate court dismissed the action taking the estate’s Answer on its face that debtor was owed nothing from the estate. Creditor appealed, claiming that the court should allow discovery on whether debtor in fact is owed monies as beneficiary of the estate, in light of the court’s ability to allow creditor to levy on the beneficiary’s share in certain situations.
The appellate court reversed, finding questions of fact over whether debtor was owed any monies from the estate as beneficiary. If so, creditor had the ability to attach the monies due debtor from the estate.
Distributions
In the Matter of the Estate of Frank Leonard, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-6403-08T3) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Sussex County. Before Judges Gilroy and Simonelli.
This appeal arises out of a dispute between Decedent’s second wife and his children from a prior marriage pertaining to the second wife’s handling of the Decedent’s residence, which was held in trust, and the failure to distribute personal property which was owned by Decedent’s first wife to his children pursuant to his will.
Decedent’s first wife predeceased him. They had seven children. Decedent then married his second wife, Elizabeth. In his Will, he directed that his residence in Branchville, New Jersey be shared by Elizabeth and his children, and he devised his first wife’s personal property to his children.
Elizabeth refused to probate the will. After an action was filed by Decedent’s children, the court compelled her to probate the will. Decedent’s children also sought access to the residence to remove their mother’s personal property, and to compel sale of the residence as Elizabeth refused to allow for equal access to the premises. Elizabeth claimed she was entitled to exclusive use of the property during her life.
Applying equity, the court carved out a monthly window when Elizabeth had exclusive rights to the property.
The court also denied the children’s request for a turnover of their mother’s personal property based on laches and the entire controversy doctrine. The appellate court reversed in part, finding that Elizabeth did not object to the children’s rights to the personal property and would not be harmed by the turnover of the items to Decedent’s children.
Divorce – Estate’s Claim for Diversion of Marital Assets
Kay v. Kay, 200 N.J. 551 (2010).
This appeal was taken from the lower court’s dismissal of the underlying divorce action between Decedent and his spouse. The estate claimed that the divorce action should continue to determine the rights to certain property which they claim were diverted by the Decedent’s spouse during their marriage, for ultimate disposition under his will.
In upholding the Appellate Division, the New Jersey Supreme Court held that a trial court must consider the equitable claims raised by the estate of a deceased spouse who, during the divorce litigation, was attempting to pursue a claim that the surviving spouse had diverted marital assets. Permitting the estate the opportunity to pursue its claim for relief in the underlying divorce action after the Decedent’s death would promote equity and fair dealing between spouses.
The estate may continue the divorce action for the limited purpose of proving that marital assets were diverted by the surviving spouse, because equity demands that the innocent spouse have a forum to recover those assets in equitable distribution for payment to the deceased spouse’s rightful heirs and to prevent unjust enrichment.
Forced Insolvency
In the Matter of the Estate of David B. Madden, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-5673-08T3) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County. Before Judges Carchman, Lihotz and Ashrafi.
Plaintiff alleged that Decedent engaged in a series of fraudulent transactions with his wife which resulted in an insolvent estate, depriving plaintiff of the ability to collect on a judgment he had against Decedent. The trial court found that plaintiff failed to sustain his burden of proof, which was upheld on appeal.
Plaintiff and Decedent were friends and engaged in business transactions with each other. Decedent borrowed money from plaintiff in 2003 for an investment in an insurance company, which was evidenced by a note. Decedent ran the insurance company until his death. In 2000, Decedent was diagnosed with prostate cancer and established an estate plan by placing sufficient assets in his wife’s name to take care of the credit shelter trust provisions under their wills. Decedent held real estate as joint tenants which he ultimately distributed to his wife before his death. Decedent died on November 12, 2003 and his wife was appointed as executrix.
Decedent also had an interest in two leases, which are the subject of the appeal. Decedent subleased the premises to Boston Chicken, in which Decedent received approximately $40,000 per year in excess to the lease payments due the landlord. The lease was transferred by Decedent to his wife. Also, the insurance company filed for bankruptcy after Decedent’s death. Plaintiff filed suit against the estate seeking to undo certain pre-death transfers of Decedent.
The court ruled that the actions of Decedent and defendant did not amount to a fraud to avoid a creditor, merely actions to protect their family through proper estate planning. Decedent was permitted to assign the sublease to defendant, and plaintiff failed to prove that the pre-death transfers were an intention by the Decedent to avoid payment on the note, as Decedent still held shares in the insurance company which he intended to sell to satisfy the note. Also, there was still value in the insurance company which the parties agreed was intended to fund the buy-out of the note.
Forced Sale to Pay Expenses
In the Matter of the Estate of Anthony J. Napoleon, deceased, 2010 N.J. Super. Unpub. ____ (Docket Nos.: A-0919-09T2 and A-1087-09T2) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County. Before Judges Axelrad, Fisher and Espinosa.
This appeal was taken from the lower court’s order compelling the sale of a condominium owned by the estate to provide the illiquid estate with necessary funds to address various obligations. It was consolidated with an appeal from the prior co-administrator from the lower court’s order imposing sanctions for violation of the court’s oral proclamation imposing unspecified restraints on estate distributions. The appellate division upheld the order compelling the sale of the condominium but overturned the order imposing sanctions, finding lack of adequate specificity in the court’s attempt to impose restraints on distributions.
Legal Malpractice Claim Not Barred by the Entire Controversy Doctrine
Higgins and Calcaterra v. Thurber and Thurber Cappell, LLC, 413 N.J. Super. 1 (App. Div. 2010). On appeal from the Superior Court of New Jersey, Law Division, Morris County. Before Judges Axelrad, Fisher and Sapp-Peterson.
This case involved a claim of malpractice filed by the beneficiaries of the estate against the attorneys for the executor of the estate.
The attorney and firm were hired by the executor to set aside certain questionable transfers of NY Mercantile Exchange Seats owned by the Decedent which were transferred to his daughter prior to his death. An initial hourly retainer was signed, and, when the estate could not pay, the retainer was modified to a contingency arrangement.
At trial, the court ruled that certain Mercantile Exchange seats should be transferred back to the estate. An appeal was taken. Prior to disposition of the appeal, another suit was filed seeking to have the executor removed due to misconduct and to hold the guardian ad litem liable for misconduct. The Court denied the request and ordered a formal accounting. The executor filed a complaint seeking to have his accounting approved. While the formal accounting was pending, another suit was filed seeking damages against the executor for breach of fiduciary duty and claiming that the attorneys for the estate committed malpractice. Exceptions were filed in the accounting action which were highly critical of the services rendered by defendant-attorneys. The defendant-attorneys intervened in the accounting action and the court ultimately dismissed the claims against them without prejudice.
The within complaint was then filed by beneficiaries of the estate against defendant-attorneys claiming legal malpractice, breach of contract, breach of covenant of good faith and fair dealing and excessive fees. The defendant attorneys moved to dismiss the action based on the entire controversy doctrine and the statute of limitations, and the court agreed.
On appeal, the court rejected the application of the entire controversy doctrine to bar the malpractice claim, despite the numerous law suits over a 13 year period, as it was not clear from the record that the beneficiaries were given a full and fair opportunity to prosecute their claim in the formal accounting action. The matter was remanded on this issue and the issue of the application of the 6 year statute of limitations as it was unclear when the limitation period began.
Surety Bond
Wisnewski v. Travelers Casualty and Surety Company, et al., 2010 U.S. App. LEXIS 15468 (3rd Cir. 2010). On appeal from the United States District Court for the District of New Jersey.
The lower court dismissed plaintiff’s complaint which sought payment from the executor’s surety company based on the entire controversy doctrine. The Appellate Court agreed, holding that plaintiff’s underlying claims against the surety company involved issues already litigated and disposed of by the Superior Court of New Jersey, Chancery Division, probate part. In addition, the Executors underlying account was approved by the Court in this intestacy action, and plaintiff had signed a refunding bond and release. The Executor and the surety bond were discharged by order of the probate court. The within matter seeking to reopen claims regarding the disposition of Decedent’s assets was therefore barred by the entire controversy doctrine.
Disinterment – Decedent’s Wishes Given Consideration
Hiller v. Washington Cemetery, et al., 2010 N.J. Super. Unpub. LEXIS 299 (Docket No.: A-2510-08T1) (App. Div. 2010). Before Judges Lisa and Coburn.
The Appellate Division upheld the lower court’s holding allowing for the body of Decedent to be exhumed from the grave site where he was buried for the purpose of having him cremated based on Decedent’s expressed written intentions.
Decedent was buried by his brother, an Orthodox Jew, the morning after his death, despite Decedent’s clear written intentions to be cremated. A law suit was filed by Decedent’s girlfriend seeking to have his body disinterred and cremated. Decedent had expressed his intentions in a letter and in a written will.
Under Marino v. Marino, the court may consider the Decedent’s wishes in dealing with the issue of disinterment. Here, the Decedent’s intentions were clear and the court was entitled to strike the balance in favor of Decedent’s clear preference. Decedent’s girlfriend was given authorization to have the body exhumed and the Decedent’s body cremated. Decedent’s brother was also ordered to pay for the costs of exhuming the body and the cremation.
Evidence – Trustworthy Statements by Deceased Declarant
Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, 2010 N.J. Super. Unpub. ____ (Docket No.: A-62-09) (App. Div. 2010). New Jersey Supreme Court.
This matter involved the lower court’s exclusion of statements made by the Decedent to the police concerning the cause of his automobile accident on summary judgment. On appeal, the appellate court concluded that the statement to the police was admissible under N.J.R.E. 804(b)(6) (Trustworthy Statements by Deceased Declarants).
After an accident, Decedent stated that he was cut off by a “phantom vehicle”, a blue corvette, forcing him to crash. He was transported to the hospital where he made the same statement. He was discharged and an accident claim was made, with no mention that Decedent was cut off. A few months later Decedent committed suicide.
The issue was whether Decedent’s statement was admissible as an exception to the hearsay rule. NJRE 804(b)(6) codifies an exception to the hearsay rule in civil proceedings admitting “a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant’s personal knowledge in circumstances indicating that it is trustworthy.”
The trial court concluded that the statement by the Decedent was inadmissible because it was an attempt to shift responsibility for the accident to a “phantom vehicle.” The Decedent had much to gain by the statement and had no duty to be truthful.
The Appellate Division held that the statement was admissible as there was nothing in the record to indicate that the statement was not made in good faith or that it was otherwise lacking in reliability or untrustworthiness. The Supreme Court agreed.
Insolvent Estate – Priority of Claims in Foreclosure Action
Investors Savings Bank v. Gloria and Steven Sitzman, as Administrator of the state of Peter Sitzman, deceased, 2010 N.J. Super. Unpub. ____ (Docket No.: A-183-08T2) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County. Before Judges Grall and Messano.
Decedent passed away owning real estate encumbered by a mortgage. The Decedent’s parents were appointed as co-administrators of the estate. The Decedent’s only asset was a residence worth $210,000, with a mortgage lien of $262,000. On Decedent’s death, a foreclosure action was filed by the bank seeking the return of Decedent’s real estate. The co-administrators filed an action in surrogate’s court seeking to declare the estate insolvent, and to allow for them to sell the Decedent’s residence and pay funeral bills and administration expenses out of the proceeds of sale before turning the remainder over to the bank. The bank filed summary judgment. Denying the co-administrators’ request, the court ruled that the priority scheme of N.J.S.A. 3B:22-2 did not apply because the residence was not an asset of the estate, only Decedent’s equity in light of the mortgage was an asset of the estate. Since the value of the mortgage was well in excess of the value of the property, the bank’s summary judgment request seeking to consolidate the matter with the foreclosure matter was granted. This decision was upheld on appeal.
Legal Malpractice – Statute of Limitations
Pasqua v. Masone, 2010 N.J. Super. Unpub. _____ (Docket No. A-3617-08T3) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Law Division, Essex County. Before Judges Rodriguez, Yannotti and Chambers.
A legal malpractice case was filed by Vincent Pasqua (“Vincent”) against Michael Masone, Esq. (“Masone”) seeking damages for preparing a Will, Trust and Power of Attorney on behalf of his mother, Madeline Pasqua (“Madeline”), for conflict of interest and failure to investigate Decedent’s health issues. Masone had been contacted by his stock broker, Andrew Pasqua (“Andrew”), Vincent’s brother, to file a tort claim on behalf of Madeline, and then to prepare estate planning documents on her behalf. As a result, there was a change in disposition which increased Andrew’s share of the Estate. On January 8, 1999, Madeline filed a Complaint against Andrew alleging breach of fiduciary duty and conversion. Madeline died on June 10, 1999.
On November 8, 1999, Andrew filed a Complaint seeking to admit the Will prepared by Masone to probate. Vincent filed objections. On January 24, 2002, Masone was deposed. The litigation culminated in a trial before Judge Weeks, who rendered a decision on February 9, 2006, setting aside the Will and Trust prepared by Masone and appointing Vincent as the administrator.
On February 5, 2008, Vincent sued Masone on behalf of the estate for legal malpractice. Masone moved for summary judgment arguing that the action was barred by the 6 year statute of limitations. The trial court agreed and the matter was dismissed, finding that the malpractice action accrued the latest at Masone’s deposition on January 24, 2002, finding that the knowledge required under the discovery rule either existed or should have existed after the deposition. By that date, Vincent had actual injury and knowledge of fault. The trial court’s decision was upheld on appeal.
Palimony Claims – Lack of Jurisdiction
In re Estate of Robert M. Figlio, deceased, 2010 N.J. Super. Unpub. LEXIS 665 (Docket No. A-3545-08T3) (App. Div. 2010). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Salem County. Before Judges Baxter and Alvarez.
This matter involved an appeal of the lower court’s dismissal of a potential palimony claim against the Estate which was overturned on appeal as the plaintiff was not named as an interested party or give notice of the underlying probate complaint.
Decedent and his wife were married in 1968. After Decedent’s demise in March of 2008, Decedent’s wife filed an Order to Show Cause and Complaint to probate a holographic Will allegedly signed by the Decedent in 1972 which left his wife his entire estate. Decedent’s wife did not name Plaintiff, who allegedly had a marital type relationship with Decedent, as an interested party. Prior to the return date, Plaintiff sent a letter to counsel for the Estate regarding her potential palimony claim against the Estate. This letter was sent to the Court by counsel for the Estate. Plaintiff also filed a Certification with the Court detailing her relationship with the Decedent. Although counsel and the Court were aware of the claim, Plaintiff was never served with a copy of the Complaint, and therefore no responsive pleadings were filed. After a hearing, the trial Court dismissed Plaintiff’s potential palimony claim and admitted the holographic Will to probate.
On appeal, the appellate court held that since Plaintiff was not named as an interested party, and was not served with the underlying probate Complaint, her rights could not be adjudicated as the Court lacked jurisdiction over her claim. Even if the Probate Part had the authority to decide such a claim, Plaintiff presented sufficient facts to survive the motion for dismissal of her palimony claim. The order dismissing the matter was reversed, and Plaintiff authorized to assert a palimony claim in the Family Part for proper adjudication.
Beneficiary Liability – Environmental Clean-up
Pries v. Hugin, et al., 2009 N.J. Super. Unpub. LEXIS 2967 (Docket No.: A-4559-07T3) (App. Div. 2009). Before Judges R. B. Coleman and Simonelli.
Issue: Are the heirs of an estate liable to plaintiff as owners of the property from which raw sewage flowed onto the plaintiff’s property?
Holding: No. The property in question is still owned by the Estate and therefore, the beneficiaries of the Estate owed no duty to the adjoining landowner for a broken sewer line causing plaintiff damage. The motion for summary judgment granted by the trial Court was therefore affirmed.
While the beneficiaries of an estate became the owners of the property at Decedent’s death pursuant to the terms of the Will, title remain vested in the Estate until a Deed transfer is made. The Executrix has the right pursuant to statute to possess and control the property, not the beneficiaries. The duty to plaintiff, if any, is owed by the Executrix of the Estate, who manages and controls the property in question pursuant to N.J.S.A. 3B:10-29, not the beneficiaries.
Disinterment
Marino v. Marino, 200 N.J. 315 (2009). Before the New Jersey Supreme Court.
Issue: Do the statutory provisions that authorize a surviving spouse with the authority to designate a place of interment, absent a contrary written declaration, also give the spouse the exclusive right to demand disinterment notwithstanding statutory language to the contrary?
Holding: No. There are clear differences between the provisions of the Cemetery Act (N.J.S.A. 45:27-1, et seq.) governing interment and disinterment. Under the statute, there is a strong preference against disinterment. Unlike the statutory provisions governing interment where the surviving spouse is given exclusive authority over where to bury Decedent’s remains, the surviving spouse is not given the right to disinter alone, as it must be authorized by the spouse, adult children and the owner of the cemetery.
This matter involved a dispute between Decedent’s surviving spouse and his adult children as to where the Decedent should be buried. Decedent did not place any preference in writing in his Will or otherwise. Upon Decedent’s death, Decedent was buried by his adult children, and the surviving spouse was strong armed into acquiescing. She then brought suit seeking to disinter Decedent’s body to a new burial site, where she claimed he wanted to be buried. After a hearing, the trial Court found that Decedent had a preference to be buried next to his father’s remains, and not at the site advanced by his surviving spouse. In its decision, the trial Court upheld Decedent’s wishes as it perceived them from the testimony presented at the hearing..
Under the Cemetery act, a Decedent’s written expression of intent controls. In default, the right to control funeral and disposition of the remains shall be in the following order: (1) the surviving spouse, then (2) the majority of surviving adult children. Under the Cemetery Act, orally expressed wishes of the Decedent are no longer binding and the surviving spouse may select the burial site. The trial Court found that the children violated the statute as the surviving spouse was given preference.
On appeal to the Appellate Division, it was argued that the Decedent’s orally expressed wishes as to the burial site should control. The Court found that the trial Court should not have considered the hearsay testimony as to Decedent’s intentions as the statute controlled. The Appellate Division found that the statutory provisions governing interment and disinterment should be read in para materia (together), and the preferences of the surviving spouse should be given the greatest consideration.
The matter was appealed to the Supreme Court, which found that the statutory provisions governing interment and disinterment have a different regulatory scheme and cannot be read together. Although the surviving spouse is given the right to choose where her husband is interred, she did not have the exclusive right to disinter. The Court refused to move the body as the statute required the adult children to also authorize the disinterment. The Court also noted that the language of the disinterment statute expresses a preference against disinterment and the surviving spouse’s wishes are not paramount, as they must be considered in light of the wishes of the Decedent and his adult children.
Divorce – Constructive Trust
Estate of Bernard Ritterman v. Cecile Ritterman, 2009 N.J. Super. Unpub. LEXIS 829 (Docket No.: A-3720-07T3) (App. Div. 2009). Before Judges Axelrad and Messano.
Issue: Should a constructive trust be imposed over monies received by Decedent’s wife after Decedent’s death in a sale of their marital home in light of the divorce proceedings between the parties which were ongoing at Decedent’s death?
Holding: No. A divorce decree had yet to be entered and although negotiations were ongoing, the lower Court failed to find extraordinary circumstances to formalize the divorce between the parties. While negotiating a settlement, the wife signed a Deed in favor of her husband to the marital residence. The record is clear that there was no firm agreement respecting equitable distribution of the marital home prior to husband’s death. In fact, the Deed was held in escrow pending resolution of the final issues. The wife never received the buy-out of her share and the terms of a consent order were still being negotiated when the husband died. On behalf of his estate, the husband’s two adult children sought ratification of the divorce, which was denied.
Entire Controversy Doctrine – Contested Administration
The Estate of Elyree Smiley and George Gibson v. Brenda McElnea, Esq., 2009 N.J. Super. Unpub. LEXIS 2729 (App. Div. 2009). Before Judges J.N. Harris and Newman.
Issue: Does the Entire Controversy Doctrine apply to bar a subsequent suit filed against a temporary administrator of the estate appointed during the pendency of a Will contest based on claims already adjudicated by the probate Court?
Holding: Yes. Plaintiff’s suit questioning Defendant’s handling of the administration of the Estate was properly dismissed through application of the Entire Controversy Doctrine. This was Plaintiff’s fourth suit against the temporary administrator dealing with the same issues and was therefore properly dismissed.
Plaintiff claimed he was unable to litigate all issues in front of the probate Court in the prior proceedings, but he failed to file an appeal.
The Entire Controversy Doctrine requires litigants in a civil action to raise all affirmative claims arising from a single controversy that each party might have against another party, including counterclaims and cross-claims. The central consideration is whether the claims against the different parties arise from related facts or the same transaction or series of transactions. Although it is designed to promote efficiency, it cannot be used as an inequitable sword against a litigant.
All of the claims raised by Plaintiff in his new suit were well within the factual matrix that was litigated to conclusion in the prior suit. In addition, Plaintiff’s pro se status does not allow for him to avoid the rules promulgated by the Supreme Court to guarantee an orderly process.
Intestacy – Void Second Marriage
In re Estate of Augustin Ngwe Mandeng, deceased, 2009 N.J. Super. Unpub. LEXIS 407 (Docket No. A-2143-07T3) (App. Div. 2009). Before Judges Reisner, Sapp-Peterson and Alvarez.
Issue: Is Decedent’s spouse equitably estopped from challenging the validity of a Cameroonian divorce and second marriage under Heuer v. Heuer, 152 N.J. 226, 704 A.2d 913 (1998) in order to establish her intestate share of the estate of her husband who had allegedly remarried?
Holding: No, Decedent’s spouse is not prevented from challenging the validity of the Cameroonian divorce and second marriage under Heuer as she was unaware of its existence. The lower Court also found that the Cameroonian divorce decree was a fraud based on evidence presented at a summary judgment motion hearing. The validity of the first marriage was undisputed, making the second marriage null and void. Therefore, Decedent’s first spouse was entitled to receive distribution of the Estate under the New Jersey intestacy statutes.
The Court also found that the elective share statute does not apply in situations where an individual dies without a will. Instead, the intestacy statute applies and the statute does not require Decedent’s spouse to reside with him at the time of death in order to inherit. See N.J.S.A. 3B:5-3.
Settlement – Funeral Expenses
In re Estate of Marilyn Varcadipane, deceased, 2009 N.J. Super. Unpub. LEXIS 572 (Docket No. A-5130-07T3) (App. Div. 2009). Before Judges Fisher and King.
Issue: Is an estate required to reimburse the funeral and burial expenses paid by a party to a settlement in light of the global settlement entered into between the parties which did not specifically mention such expenses?
Holding: The Court remanded the matter for further proceedings to determine whether the parties had entered into an agreement as to the reimbursement of these expenses as part of the global settlement between them.
The aggrieved party claimed that Decedent entered into an oral agreement with him whereby Decedent agreed to pay him for caring for her and for expending monies on her behalf. A global settlement was entered between the parties. Thereafter, an accounting was filed by the Executor of the Estate and a claim was made by the aggrieved party for payment of expenses which he made on Decedent’s behalf both before and after her death. The Court held that the payments which were made before Decedent’s death were covered by the global settlement and remanded to the trial Court to decide whether the funeral and burial expenses were also covered by the agreement.
In reviewing a settlement, the Court is required to “strain to give effect to the terms of a settlement wherever possible,” and that “any action which would have the effect of vitiating the provisions of a particular settlement agreement and the concomitant effect of undermining public confidence in the settlement process in general, should not be countenanced.” Dep’t of Pub. Advocate v. N.J. Bd. Of Pub. Util., 206 N.J. Super. 523, 503 A.2d 331 (App. Div. 1985). Here, the aggrieved party claimed that Decedent orally promised him a portion of her estate in consideration of his payment of her living expenses and her care during her life. The matter was settled and the aggrieved party received 51% of the Estate. The trial Court therefore correctly concluded that any reimbursement for the living expenses of the Decedent was barred by the settlement agreement. However, the settlement agreement did not stipulate as to the responsibility for the payment of the funeral and burial expenses, which are customarily paid out of the estate. The matter was therefore remanded for further proceedings.