Category Archives: Undue Influence

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 →

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

Where a party in an estate litigation matter has engaged in undue influence, the Court may award punitive damages, although such circumstances are limited.

Posted on February 14, 2013 by Kelaher, Van and Moriarty

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

Posted on November 7, 2012 by Kelaher, Van and Moriarty

     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

Appellate Division reverses trial court’s decision with regard to standing to contest a Will

Posted on September 27, 2012 by Kelaher, Van and Moriarty

   On August 14, 2012, In the Matter of the Probate of the Will of Darryl Fields, Superior Court ofNew Jersey, Appellate Division, Docket No. A-2349-10T2, the Court examined the issue of standing to contest a Will.     In Fields, the decedent executed a preprinted Will leaving his entire estate to his landlords.  Within two (2) months thereafter, the decedent died at the age of forty-eight (48).  A caveat was filed by a woman who asserted that she was the decedent’s daughter.  To prove that she was his daughter, she produced three documents: her birth certificate, her mother’s affidavit of paternity, and the certificate she signed authorizing the decedent’s cremation which could be signed only by a descendant.     The landlords, who were named in the decedent’s Will filed pleadings to probate the decedent’s Will.  On the return date, they argued that the Will was valid and that until the caveator established a parent-child relationship, she had no standing to contest the Will.        The landlords testified that they knew the decedent for some time and that the caveator had only contacted him on one occasion to invite him to her wedding.  The decedent never talked about her.  The … Continue reading →

Posted in Undue Influence | Comments Off on Appellate Division reverses trial court’s decision with regard to standing to contest a Will

Undue Influence challenges involving Wills and Joint Accounts

Posted on September 20, 2012 by Kelaher, Van and Moriarty

   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 →

Posted in Elder Law, Joint Accounts, Litigation, Undue Influence, Wills | Comments Off on Undue Influence challenges involving Wills and Joint Accounts