Recent cases:
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.