Categories
- Arbitration (1)
- Attorneys Fees in Probate Action (6)
- Divorce (1)
- Elder Law (5)
- Guardianship (3)
- Joint Accounts (3)
- Litigation (20)
- Mediation (1)
- Medicaid (4)
- Nursing Homes (2)
- Philanthropy (7)
- Probable Intent (2)
- Probate (9)
- Special Needs (2)
- Taxes (2)
- The Doctrine of Laches (2)
- Trusts (4)
- Undue Influence (8)
- Wills (12)
Category Archives: Litigation
Appellate Division reversed trial court’s decision to invoke in terrorem clause and assess counsel fees
On February 1, 2013, in the Matter of the Estate of Lucille Sand, Docket No. A-4524-10T4, the New Jersey Appellate Division reversed the trial court’s decision as to the invocation of the in terrorem clause of the Decedent’s will and assessment of counsel fees. By way of background, the Decedent executed a Will on December 4, 2002and a codicil on February 2, 2005. The Decedent died on March 12, leaving four children. The Plaintiff brought suit naming her three siblings as Defendants, and also filed a caveat alleging undue influence, fraud, lack of testamentary capacity and forgery. Two siblings filed to have the Will admitted to probate and to be appointed co-executrices. The probate judge granted summary judgment in favor of the defendants and ordered the Will and codicil admitted to probate. The Plaintiff then filed a nine-count Complaint in the Family Part using fictitious names for all the parties. She alleged that her mother’s will breached a prenuptial agreement, sought past and present child support and alleged embezzlement and fraud. She also alleged her mother stole and misused funds left to her by her father and grandmother. She alleged that one sister committed a tort because of an arrest and conviction … Continue reading
Posted in Attorneys Fees in Probate Action, Litigation, Probate, Undue Influence, Wills
Comments Off on Appellate Division reversed trial court’s decision to invoke in terrorem clause and assess counsel fees
When an issue becomes moot, dismissal is appropriate no matter the stage of the litigation
On January 28, 2013, In the Matter of Fred Rizzo, A-2997-11T4, the Appellate Division considered the issue of attorneys’ fees in a guardianship action. By way of background, in 2007, Fred Rizzo appointed his son, Douglas power of attorney. In May 2011, the Bergen County Board of Social Services filed a Complaint for guardianship. The court appointed an attorney to represent Fred Rizzo, and that attorney thereafter incurred reasonable fees. Ultimately, the court appointed Douglas as guardian for his father. The court also ordered that Douglas was personally liable for his father’s attorneys’ fees. In its decision, the court relied on R.4:86-4, which states: “The compensation of … appointed counsel … may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” R. 4:86-4(e). Fred owned no liquid assets. His only asset was the equity in his house in which he, Douglas, and Douglas’s family resided. His only income was his monthly Social Security payment. The court stated it would be inequitable to force his attorney to wait until Fred’s death if the estate did not have sufficient funds to pay his fees. … Continue reading
Posted in Attorneys Fees in Probate Action, Guardianship, Litigation
Comments Off on When an issue becomes moot, dismissal is appropriate no matter the stage of the litigation
Rescission was appropriate where the Decedent made a unilateral mistake by naming his attorney the “pay-on-death” beneficiary on a bank account instead of funding a trust referenced in his Will
In Stephenson v. Spiegle, Docket No. A-4193-11T2, the Appellate Division examined the issue of a contradicting estate, where the Decedent named his attorney the “pay-on-death” beneficiary of a bank account instead of funding a trust benefiting family members which was referenced in his Will. Here, the Decedent executed a Will on December 19, 2006 leaving his estate to family members or trusts for the benefit of family members. The Will was prepared by Defendant. Then, on February 2, 2007, the Decedent opened an account payable on death to Defendant. The Decedent died on December 19, 2007. At the time of his death, the subject account held approximately one-third (1/3) of his estate. The Executor discovered the account while marshalling the assets of the estate. The Defendant took the position that the Decedent probably established the account to take the money out of the estate and denied any knowledge of the opening of the account. In its analysis of the matter, the trial judge first considered reformation which is largely dependent upon a mutual mistake. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608-09 (1989). Thus, the trial judge searched further considering a constructive trust, probable intent, conversion and undue influence. … Continue reading
Posted in Litigation, Probable Intent, Probate, Wills
Comments Off on Rescission was appropriate where the Decedent made a unilateral mistake by naming his attorney the “pay-on-death” beneficiary on a bank account instead of funding a trust referenced in his Will
Where a party in an estate litigation matter has engaged in undue influence, the Court may award punitive damages, although such circumstances are limited.
In the Matter of the Estate of Madeline Stockdale, A-121-06, the Appellate Division considered the circumstances in which it is appropriate to award punitive damages against a party in a probate matter involving a claim of undue influence. By way of background, the decedent was predeceased by her husband and had no children. She was reclusive and suspect of others, believing that they were only interested in her wealth. She had two nephews – George and Peter – with whom she had little contact. She intended to leave her entire estate to charity. In 1998, the decedent executed a Will which left a substantial number of specific bequests and named the Spring Lake First Aid Squad as residuary beneficiary. In 2000, the decedent executed a second Will which made a neighbor, Sollitto, the residuary beneficiary. The Squad successfully challenged the 2000 Will and successfully attacked an inter vivos transfer of the decedent’s real property to Sollitto on exceptionally favorable terms. Both the 2000 Will and the inter vivos transfer were found to be the produce of undue influence. The trial court awarded legal fees to the Squad as a substitute for punitive damages. The Squad appealed. The Appellate Division affirmed … Continue reading
Posted in Litigation, Undue Influence
Comments Off on Where a party in an estate litigation matter has engaged in undue influence, the Court may award punitive damages, although such circumstances are limited.
The Mere Existence of a Parent-child Relationship Does Not Create a Confidential Relationship
On October 17, 2012, In the Matter of the Probate of the Alleged Will of Joan Pennella, Superior Court ofNew Jersey, Appellate Division, Docket No. A-1958-11T4, the Court again examined the issue of Undue Influence. By way of background, the decedent died leaving seven (7) children. Beginning in 1996, after her husband died, the decedent began making annual gifts to each of her children. A 1996 Will left her estate to her seven (7) children equally. In 2006, she made a new Will, leaving her estate to a living trust, of which only five (5) of her children were beneficiaries. A 2010 Will continued the exclusions. According to the attorneys, the decedent expressed concern that one of the excluded children was a spendthrift and the other had not paid back borrowed money. After the decedent died, her oldest son moved to probate the 2010 Will. The two excluded children filed a contesting answer and counterclaim alleging lack of testamentary capacity and undue influence. Generally speaking, in any attack upon the validity of a will, it is generally presumed that “the testator was of sound mind and competent when [she] executed the will.” Gellert v. Livingston, 5 N.J. … Continue reading
Posted in Litigation, Undue Influence, Wills
Comments Off on The Mere Existence of a Parent-child Relationship Does Not Create a Confidential Relationship