Category Archives: Probate

The Doctrine of Substantial Compliance and Writing Intended as a Will

In The Matter of the Estate of Blackwell, Superior Court of New Jersey, Appellate Division, Docket No. A-4816-08T34816-08T3, the Court examined the issue of substantial compliance with regard to the purported Last Will and Testament of Albertha Blackwell. Here, the document at issue was entitled “Last Will and Testament of Albertha Blackwell.” The body of the Will is five (5) pages, each of which bears a signature in the left-hand margin. The last page also bears a second signature. However, the Will is not dated, nor does it have an attestation clause. Page six (6) contained language similar to a self-proving affidavit and was signed by two (2) witnesses and notarized by an attorney. But, the acknowledgment is not dated. Pursuant to N.J.S.A. 3B:3-2, a Will shall be in writing; signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and signed by two (2) witnesses. However, a Will may be admitted to probate under circumstances where it does not literally comply with the statutory requirements if substantial compliance exists. Or, a document not in strict compliance with 3B:3-2 may be admitted to probate if the proponent … Continue reading

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Dispute between co-executors

In the Matter of the Estate of Trocolor, Superior Court of New Jersey, Appellate Division, Docket No. A-5005-09T3, the Court addressed a dispute between two siblings who were co-executors of their mother’s estate. The plaintiff alleged that the other co-executor and another individual misappropriated substantial sums of money from three reverse mortgages. The defendants filed a counterclaim alleging that the plaintiff had also misappropriated sums of money. Initially, the trial judge put all parties on notice that if either side proved that the other side looted their mother’s estate and defrauded her that he might, as an equitable remedy, bar the guilty party from inheriting from the estate. Neither party objected. At trial, the judge found the plaintiff to be credible and that she had not misappropriated any money. The defendant – the other co-executor – admitted taking at least $200,000.00 from the proceeds of those mortgages to pay for improvements to his own house and his children’s college tuition, and claimed that his mother knew about, and approved of, those expenditures. In support of his allegations he produced a purported gift letter from his mother. However, the trial judge found the co-executor to be a completely incredible witness. In … Continue reading

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Administrator of a Non-resident decedent estate’s wrongful death action

In the Matter of the Estate of Baumiester, Superior Court of New Jersey, Appellate Division, Docket No. A-5041-09T1, the Court addressed the issue of who should be Administrator over a Non-resident decedent estate’s wrongful death action. The decedent died in an automobile accident in New Jersey. At the time of his death, he was a resident of Maryland and on his way to New York for paternity proceedings wherein he was declared the father of a daughter. The decedent’s mother applied for letters of administration in Maryland since the decedent died without a Will. His daughter’s (Nicole) mother applied for letters of administration in New Jersey. Thereafter, both women received letters of administration and both commenced wrongful death actions. Here, in New Jersey, the Law Division dismissed the decedent’s mother’s complaint in favor of the complaint filed by the decedent’s daughter’s mother. However, in its review of the matter, the Appellate Division first noted that Baumiester was a Non-resident decedent. Thus, since New Jersey’s intestacy laws play no role in determining a non-domiciliary decedent’s line of succession, the Law Division should not have relied upon New Jersey law in reaching its decision. Maryland law would reach the same conclusion that … Continue reading

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Time frame for filing a Complaint against the probate of a Will

In the Matter of the Estate of Ehmer, Superior Court of New Jersey, Appellate Division, Docket No. A-5041-09T1, the Court addressed the time frame for filing a Complaint against the probate of a Will. In this matter, the decedent executed two Wills, one in 2001 and one in 2004. The primary beneficiaries of the first Will were the decedent’s child, grandchildren and her church. The latter will included only her child. The decedent died in July of 2008. In August 2008, the decedent’s child probated the 2004 Will in Ocean County. Unaware, the decedent’s grandchild attempted to probate the 2001 Will in Hudson County which was denied due to the Ocean County probate. In March 2009, the decedent’s grandchild (plaintiff) filed an action in Ocean County. Although not raised in her answer as a separate defense, the decedent’s child (defendant) moved for summary judgment on grounds that the Complaint was not timely filed pursuant to Rule 4:85-1. Rule 4:85-1 provides that a Complaint to see aside the probate of a Will must be filed within four (4) months after probate. However, the Court held that this Rule incorporates the provisions of Rule 4:50-1 which allows for a filing outside the … Continue reading

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