Category Archives: Litigation

Undue Influence challenges involving Wills and Joint Accounts

   In a recent decision (August 10, 2012), In The Matter of the Estate of Antoinette Zarrillo, Superior Court of New Jersey, Chancery Division: Probate Part, Essex County, Docket No. ESX-CP-0108-2008, the Court dealt with the issue of undue influence with regard to the execution of the decedent’s Will and changes to beneficiary designations and co-owners of joint accounts.  The opinion also explains the different standards involved in proving undue influence with regard to Wills versus with regard to inter vivos transfers.     Here, the decedent died testate onJanuary 19, 2008and was survived by three sons.  The decedent’s Will, datedDecember 14, 2004, named her son, Joseph, as Executor.  Joseph was left the property and contents of decedent’s home as well as 45% of the residual estate.  Decedent’s other son, Nicholas, was left 45% of the residual estate and her other son, Michael, was left 10%.    The Will also contained an in terrorem clause which is a no-contest clause.     Joseph and his wife moved in with decedent after her husband died in 2000.   When the decedent executed her Will in 2004, her health had begun to falter.  At this time, she also changed the ownership and beneficiary designations on … Continue reading

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Court authorizes reimbursement of expenses from Special Needs Trust

   On August 21, 2012, in the Matter of Jennifer Rogiers, Superior Court of New Jersey, Appellate Division, Docket No. A-0389-10T1, the Court addressed issues relating to the reimbursement of expenses from a Special Needs Trust.    Here, Jennifer Rogiers is a severely handicapped individual.  As a result of a medical malpractice lawsuit, a significant amount of funds were placed into a Special Needs Trust for Jennifer’s benefit.  At the time of her death, the balance of the trust fund was approximately $1.1 million.  Jennifer died intestate and without children.  The order creating the trust provided that upon Jennifer’s death any principal and undistributed income shall be paid to the intestate heirs.    Following Jennifer’s death, her father sought half of the balance as his intestate share.  Her mother sought reimbursement for expenses she incurred for services provided on Jennifer’s behalf during her lifetime.     Jennifer lived with her mother for her entire life.  Her mother attended to her needs and incurred substantial expenses.  The original order provided that her mother would be paid for caring for Jennifer.  The mother’s claim consisted of out-of-pocket expenses and for compensation for her care.  The trial judge granted the mother’s requests.     The … Continue reading

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Under some circumstances, a Will that is neither dated nor signed may be admitted to probate

   On June 29, 2012, In the Matter of the Estate of Richard D. Ehrlich, Superior Court ofNew Jersey, Appellate Division, Docket No. A-5439-10T2, the Court was faced with the question as to whether an unexecuted copy of a Will sufficiently represents the decedent’s testamentary intent such that the Will could be admitted to probate.     By way of background, the decedent was an estate planning attorney who practiced for over fifty (50) years.  He executed a Will nine (9) years before his death, kept an unsigned copy in his office, and sent the original documents to his executor.   The Will left 25% of his estate to a friend, Kathryn, and the balance to his nephew, Jonathan.  The decedent left behind two other relatives, a nephew and a niece, who were not mentioned in the Will.     The decedent’s nephew, Jonathan, found a copy of the purported Will in a drawer in the decedent’s house, which was not signed but was on the decedent’s letterhead.  Jonathan submitted the unsigned document for probate.  The other nephew and niece contested.          The proffered Will is a copy of a detailed fourteen-page document entitled “Last Will and Testament” printed on the decedent’s … Continue reading

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Court denies counsel fees to an unsuccessful contestant in a probate litigation matter

   On July 11, 2012, In the Matter of the Estate of Schmidt, Superior Court ofNew Jersey, Appellate Division, Docket No. A-0210-11T2, onJuly 11, 2012, the Court affirmed the trial court’s decision to deny counsel fees to an unsuccessful contestant in a probate litigation matter.    In Schmidt, the defendant, who was the decedent’s nephew, had power of attorney for the decedent.  After the decedent’s death, her niece filed a Complaint to compel an accounting of the nephew’s actions as POA.     The nephew provided an informal accounting, the niece filed a motion to enforce litigant’s rights relating to the accounting.     By way of background, the nephew was the sole residuary beneficiary and maintained – throughout the litigation – that there were sufficient funds to satisfy the niece’s $20,000 specific bequest.  Nevertheless, the Court permitted the niece to press on with her Complaint, based on the theory that if she had established wrongdoing on the nephew’s part, she could recoup her fees.     The trial judge noted that the POA kept poor records and made various checks payable to cash, including in payment of home health aides; however, the court found that such actions were for the benefit of the decedent … Continue reading

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Court denies attorneys’ fees where deficient guardianship pleadings are withdrawn

   In the Matter of the Estate of Booker, Superior Court of New Jersey, Appellate Division, A-0382-11T2, the Court denied an application for attorneys’ fees.      Here, the decedent died intestate.  His sole heir was an adult son.  As such, the decedent’s mother retained an attorney to file an action seeking, among other relief, the creation of a special needs trust for her grandson (the decedent’s son).  Also, she sought, in a separate action, to be appointed guardian for her grandson.     Approximately six (6) months following the filing of the Complaints, the decedent’s mother discharged her attorney.  She also withdrew the guardianship application – filed by the attorney – because it was deficient on its face, not even having the requisite affidavits from two medical doctors.  Furthermore, the guardianship action was improperly filed in New Jersey because the alleged incapacitated person was a resident of Pennsylvania, and therefore, the proper venue would have been in Pennsylvania.  The trial court also noted that the plaintiff (decedent’s mother) had not demonstrated how her actions aided in preserving or protecting the fund in court.  Rather, quite to the contrary, the Court was concerned by allegations of possible misappropriation of the estate assets … Continue reading

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