Category Archives: Probable Intent

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

The Court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator

   Recently, in the Matter of the Estate of Catherine Hoch, on appeal from the Superior Court of New Jersey, Chancery Division,MercerCounty, Docket No. 09-00532, the Appellate court examined the issue of the probate of a Will with cross-outs and additions.     By way of background, the decedent signed a Will datedApril 1, 1999, which included gifts to a niece and a nephew.  The Will also had numerous specific bequests to charitable organizations.  Subsequent to the execution of the Will, the decedent made extensive cross-outs and alterations in handwriting to the Will, some of which revisions dealt with the gifts to the niece and the nephew and the removal of several of the charities.  The residual beneficiary was also changed by her handwriting.  The decedent also changed the name of the document from a last will and testament to a living trust.  On the Will backer, she wrote “Void” and added “Final Living Trust4/20/2002.”    While in a nursing home, the decedent asked her friend, who was the named executor, to retrieve her Will from her home and bring it to her in the nursing home.  When her friend expressed concern over the handwritten cross-outs and alterations, the decedent told … Continue reading

Posted in Attorneys Fees in Probate Action, Probable Intent | Comments Off on The Court’s duty in probate matters is to ascertain and give effect to the probable intention of the testator