Category Archives: Probate

Appellate Division reversed trial court’s decision to invoke in terrorem clause and assess counsel fees

Posted on March 1, 2013 by Kelaher, Van and Moriarty

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 →

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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

Posted on February 24, 2013 by Kelaher, Van and Moriarty

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 →

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Fraud and the Time Limit for Challenging Probate

Posted on January 31, 2013 by Kelaher, Van and Moriarty

     In the Matter of the Estate of Elizabeth Tanksley, Docket No. A-1056-11T2 (Jan. 18, 2013), the Appellate Division addressed the effect of an Administrator’s fraud on the time limits of R.4:85-1.      By way of background, the decedent died intestate on January 13, 2000. She was survived by six adult children. At the time of her death, the decedent resided in a house in Camden, New Jersey. The estate included a life insurance policy and a piece of real property. The insurance proceeds were used to pay decedent’s funeral costs. However, the estate was not otherwise administered for several years, and during that time the real property remained vacant.      At some point during that time, one of the decedent’s daughters moved into and began to maintain the real property. Then, in 2005, she submitted an Affidavit of Heir to the Camden County Surrogate seeking title to the real property. In the portion of the affidavit requiring the listing of the names, residences, and relationships of all heirs of the decedent, she only listed herself. She also certified that she had “presented for filing the consent of all of said heirs who have capacity to consent” and was therefore … Continue reading →

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The Law of Escheat

Posted on September 13, 2012 by Kelaher, Van and Moriarty

On September 6, 2012, In the Matter of the Real and Personal Property of Carl Bekysewycz, Docket No. A-4455-09T2, the Appellate Division examined the law of escheat.  Here is the summary: In 1989, the New Jersey Legislature enacted the Uniform Unclaimed Property Act (UUPA), N.J.S.A. 46:30B-1 to -109, which changed the role of the State from that of a beneficiary to that of a custodian of unclaimed property of various types.  The UUPA repealed the personal property escheat statutes applicable to intestate estates without identifiable heirs.  See N.J.S.A. 46:30B-109. Following the repeal of the escheat laws, the fate of unclaimed estate property was governed by probate law (N.J.S.A. 3B:5-5, 3B:23-19 and -20).  Specifically, N.J.S.A. 3B:5-5 provided “If there are none who may inherit an intestate estate that estate shall escheat to the State.” On June 29, 1995, the UUPA was amended to state, “Unclaimed property held by a fiduciary of an intestate estate payable to the unknown heirs of an intestate decedent shall be presumed abandoned 90 days after publication by the fiduciary of the notice required in N.J.S. 3B:5-5.” N.J.S.A. 46:30B-37.1.

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Timeliness of Filing a Challenge to the Probate of a Will and the Imposition of Sanctions for Frivolous Filings

Posted on April 17, 2012 by Kelaher, Van and Moriarty

Recently, in the Matter of the Estate of Lichtsztral v. Pizem, Superior Court of New Jersey, Appellate Division, Docket Nos. A-3162-10T3 and A-4615-10T3, the Court examined the issues of the timeliness of filing challenges to the probate of a Will and the imposition of sanctions for frivolous filings. In 1996, the decedent executed a Last Will and Testament.  Pursuant to the Will, a trust was to be established for the decedent’s wife which would allow for the use of the principal of the trust for his wife’s benefit.  Then, upon his wife’s death, the remainder of the trust was to be paid to the decedent’s daughter.

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