On March 5, 2013, the Law Division issued its decision in the Matter of the Estate of Edith Weiner.
By way of background, the decedent died testate on April 15, 2011, survived by her three children. She had lived at a nursing home for a few months prior to her passing, and prior to that she lived with one of her sons since March 2006.
The decedent executed her Will on December 11, 2006. She left all of her personal property to her three children, her Sea Isle City property to her son, Scott, $100,000.00 to her son, Craig, $1,000.00 to each of her grandchildren and five bequests to friends. The Will had a markedly unbalanced distribution in favor of her son, Scott and was a dramatic departure from prior estate plans. Craig, and the decedent’s daughter, Lynne, sued to set aside the Will asserting undue influence, fraud, deceit and mistake.
The decedent and her husband bought the Sea Isle City property in 1951. Her husband passed away in 1988. She resided in Florida from 1974 until 2006. Craig lived in Florida from 1970 to 2006, then in South Carolina. Scott lived in New Jersey since 1994. Lynne lived in New Jersey since 1967.
After determining that the Will was the product of undue influence, the Court made the following observations. The decedent executed the December 11, 2006 Will at age 88. The court found that she had the capacity to sign the Will. A very low degree of capacity will suffice under the law. In Re Will of Landsman, 319 N.J.Super. 252 (App.Div.1999); In Re Liebl, 260 N.J.Super. 519 (App.Div.1992). A strong presumption exists in the law that a testatrix has the required testamentary capacity. Haynes v. First Nat’l Bank, 87 N.J. 163, 176 (1981).
The decedent moved to New Jersey due to hurricane damage to her Florida home. Craig left Florida and moved to South Carolina for job reasons. Shortly after moving to New Jersey, the decedent fell and broke her hip. Although living with one child and near a second, she had lost her social network and her mobility. She grew very dependent on Scott.
Undue influence is only rarely detectable by overt acts. It is never videotaped. It is almost always subtle, dependent upon inferences from the facts.
No testatrix is required to divide her estate equally among her children; indeed, she may exclude from her estate one or more or all of her children. Benedict v. New York Trust Company, 48 N.J.Super. 286, 209 (Ch.Div.) aff’d per curiam, 50 N.J.Super. 177 (App.Div.1958).
Even though the Court found the will to be the result of undue influence, the Court discussed the efficacy of the Will altering the terms of the trust. The opinion states that if the Will was valid, untainted by undue influence, then it would have effectively amended the trust as to the Sea Isle City property, because it amended the Trust by a method set forth in the Trust in accordance with Florida Law. In New Jersey, a Will has been held not to be a proper instrument to revoke or modify a revocable trust when the power to do so is an inter vivos power because a Will has no legal efficacy until the death of the testatrix. See Estate of Kovalyshyn, 136 N.J.Super. 40, 47 (Cty.Ct.1975); Estate of Henning, 116 N.J.Super. 491 (Ch.Div.1971). However, under the doctrine of probable intent, the court could give effect to that specific bequest, notwithstanding that the property was titled in the name of the Trust. See N.J.S.A. 3B:3-33.1 which codifies the doctrine of probable intent.