Category Archives: Wills

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

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The Mere Existence of a Parent-child Relationship Does Not Create a Confidential Relationship

     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

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

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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