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Burlington County Location:
Pavilions at Greentree
12000 Lincoln Drive West
Suite 401
Marlton, NJ 08053
856.596.8000


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Camden County Location:
111 White Horse Pike
Haddon Hts., NJ 08035
856.354.2000



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Blog Archives

 

September 17, 2012

N.J. probate law holds that order denying access to personal property was error

Court entered order that denied  motion seeking to compel a grant of access to a single-family dwelling (the Culver Lake property) to remove items of personal property that belonged to his deceased mother, and to permit access to the property yearly to inspect for waste.  Appellants Michael Leonard and Ariel Leonard appeal from the order also granted Elizabeth's cross-motion seeking to compel Michael to reimburse her for his share of 30% of the maintenance costs of the Culver Lake property, and to return a specific item of personal property. Lastly, the order directed to pay counsel fees. The appellate panel reveres the part of the order denying the motion seeking an order compelling  return of items of personal property formerly owned by his mother as barred by the doctrines of laches and/or the Entire Controversy Doctrine, finding the trial court erred. Consequently, the award of counsel fees is also reversed.

Legal Quote of the Week:

That which is a law today is none tomorrow.

Robert Burton, English clergyman and writer

The Anatomy of Melancholy, 1621


 

September 10, 2012

N.J. Probate attorney seeks to preliminary injunction against executor and trustee and an order removing them from their positions

The former wife of the decedent and the surviving parent of their three minor children, filed this action alleging that the decedent's brothers, the executor and trustee, have failed and refused to carry out the decedent's testamentary dispositions, failed to fund the trusts, failed to establish the testamentary trust, and have failed to distribute to the children such portion of the trust income and principal as deemed advisable for their health, support, education and welfare. Plaintiff further alleges breach of fiduciary responsibility and gross mismanagement in their takeover and operation of the decedent's business which comprises the bulk of his estate. She seeks to restrain them from being involved in the business and from transferring or encumbering income though a preliminary injunction and she seeks their removal as executor and trustee. Defendants allege that plaintiff and her family have intentionally acted to damage the business and undermine the executor. The court finds that plaintiff has failed to show a reasonable probability of ultimate success on the merits, rendering an award of injunctive relief, the restraints sought by plaintiff, and removal of defendants as executor and trustee inappropriate, noting that all material facts alleged by plaintiff with respect to abuse of trust and dereliction of duty, breach of fiduciary responsibility, mismanagement and oppressive conduct to the detriment of the children are specifically disputed by defendants and applying the standards in Crowe v. DeGioia. Finding, inter alia, that the cost would be prohibitive and outweigh any benefit that might be realized therefrom, the court also declines to appoint a receiver. The court orders expedited discovery in light of the nature of plaintiff's allegations and the executor's representations with respect to the dire financial condition of the business.


 

September 3, 2012

New Jersey probate law update:  Should summary judgment should be granted in an ownership dispute over investment accounts with right of survivorship

Pasquale Suraci (the "decedent") and his daughter, Flora, owned assets in a TD Ameritrade investment account, as joint tenants with rights of survivorship. This matter stemmed from an ownership dispute over these accounts. Defendant asserts she became the sole owner of the account as a matter of law, while the Plaintiffs, decedent's grandchildren, seek to treat the account as part of decedent's estate and have it probated. The issues presented are whether the account was the result of undue influence based upon his purported confidential relationship with his daughter and son-in-law, whether New Jersey law mandates the account pass to defendant by operation of law, and whether the account was merely a convenience account intended to be transferred back to the estate and probated according to the terms of his will or whether decedent intended for this account to be transferred to defendant upon his death. Finding there are issues of fact, the appellate panel denies the parties' respective motions for partial summary judgment.

 

Legal Quote of the Week:

Bad laws are the worst sort of tyranny.

Edmund Burke
Speech at Bristol, 1780


 

August 27, 2012

New Jersey probate law update:  Whether a will was properly admitted to probate

Trial court entered order granting summary judgment to her two sisters, admitting to probate the December 2002 last will and testament of their mother and a February 2005 codicil, directing the issuance of testamentary letters to two of her sisters as co-executors, and dismissing the caveat to the will she filed alleging undue influence, fraud, lack of testamentary capacity and forgery, this appeal followed. The panel affirms, finding that, as the will complied with the execution and attestation requirements of N.J.S.A. 3B:3-4 and 3B:3-19, it was properly admitted to probate. Additionally, the trial judge properly concluded that Sandra's claim of undue influence rested on nothing more than the disparate treatment of herself and her sisters, which was insufficient to show the “suspicious circumstances” required by Haynes. Sandra's evidence was not sufficient to overcome the presumption in favor of testamentary capacity and the inclusion of an in terrorem clause does not invalidate the will. Finally, the judge did not err in proceeding in a summary fashion without a plenary hearing or trial. 

Legal Quote of the Week:

Shall free-born men, in humble awe,

Submit to servile shame;

Who from consent and custom draw

The same right to be ruled by law,

Which kings pretend to reign?

 

John Dryden, 1631-1700
On the Young Statesman


 

August 20, 2012

New Jersey Probate law decides whether a handwritten or holographic will

 should be admitted to probate

 

The trial court entered an order denying probate to a document offered as the last will and testament of Mario Conti. Mark Imbrie produced a 20 page handwritten document that Conti had delivered to him for safe-keeping, which the court appointed administrator offered for probate as a holographic will. During the course of the proceedings, a previous will surfaced that contained a handwritten addendum revoking that will in favor of the later holographic will. The panel remanded the matter because the trial court did not have the opportunity to consider the previous will and addendum.

 

Legal Quote of the Week:

…the letter killeth, but the spirit giveth life.

New Testament, 2 Corinthians 3:6


 

May 1, 2012

NEW JERSEY PROBATE ATTORNEYS PONDER THE RULES OF UNDUE INFLUENCE IN WILL CREATION

The Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.  The court held that actions arising from disputed wills which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part; although a finding that a party in an estate has engaged in undue influence may also support an award of punitive damages, such circumstances are limited.


 

April 2, 2012

NEW JERSEY PROBATE ATTORNEYS CONSIDER RULING ON THE DEFINITION OF SPOUSES IN A TRUST WHICH LEFT THE TERM UNDEFINED

In the Matter of the Trust Created by Agreement Dated December 20, 1961 by and between John Seward Johnson, Grantor

Between 1939 and 1963, Johnson created a series of trusts to benefit his family members. At issue is the December 20, 1961 irrevocable charitable trust (the 1961 trust), which named four of Johnson’s six children, their spouses, and his eleven grandchildren as beneficiaries.  The trial judge heard and assessed extrinsic evidence to ascertain the meaning of the ambiguous word “spouses.” The court held that notwithstanding the trial judge’s reliance on some testimony that should not have been admitted, there was substantial credible evidence in the record as a whole to support the trial judge’s conclusion that J. Seward Johnson wanted a broad class of possible beneficiaries, including surviving spouses. The trial court’s finding that the word “spouses” was intended to include widows and widowers is affirmed substantially for the reasons expressed by the Appellate Division majority.


March 26, 2012

NEW JERSEY PROBATE ATTORNEYS PONDER INTESTATE LAWS

AND IMPLIED PROMISES

The Defendant and the decedent were married in 1956.  A little over a year later, she gave birth to twins.  Less than a year later, she took the twins and left the marital residence.  The couple never filed for divorce.  The only legal proceedings that took place between them were for visitation and child support, which occurred in New York in 1959-1960. The Plaintiff met the decedent one year later and lived together as husband and wife until his death in 2004. During that time period, they bought a home together, which was deeded to them as husband and wife. They also listed themselves as husband and wife on health insurance applications and also in all other respects held themselves out as husband and wife.  The appellate division held that because such a promise can be reasonably inferred from Robert's and Francine's conduct and actions, when viewed together with the lengthy period of living as husband and wife.

 


March 19, 2012

NEW JERSEY PROBATE ATTORNEYS REVIEW THE DOCTRINE OF ESTOPPEL DOCTRINE IN PREMARITAL WAIVER

Prior to marriage, the plaintiff signed an agreement which included, among other things, a waiver of Stacey's right to an elective share of her future husband’s estate. After the husband’s death, the plaintiff commenced this action on her own behalf and as guardian ad litem for their daugther, seeking, among other things, a judgment that would both declare the premarital agreement unenforceable and recognize her right to receive her elective share of her husband’s estate. The trial judge invoked the doctrine of equitable estoppel in order to enforce plaintiff's premarital waiver of an elective share to the estate of her late husband, which, in the circumstances, was otherwise rendered unenforceable by N.J.S.A. 3B:8-10 and N.J.S.A. 37:2-38.

The appellate court overruled, holding that the doctrine of equitable estoppel should not have been utilized to override the Legislature's declaration that a premarital agreement, which did not fully disclose what was being waived or which did not contain an adequate waiver of such a disclosure, must not be enforced.


 

March 12, 2012

NEW JERSEY PROBATE ATTORNEYS REVIEW RULING ON JOINT BANK ACCOUNT PROCEED DISPOSITION

The decedent and his son held a joint bank account.  At the time of death, the account had a balance of $323,847.  During his life, funds from the account were used to pay decedent's daily expenses. Twelve days after decedent's death, eight checks totaling $53,559.78 were deposited into the account by Junior as opposed to delivering them to J.P. Morgan Chase, the executor of decedent's estate.  The trial judge found that each of the checks bear the signature of decedent as endorser, with instructions for deposit to the account. The trial judge also found that there was no clear and convincing evidence of an intent to have the balance of the account go to the estate rather than the surviving joint tenant and held in favor of the defendants.  The appellate division upheld the decision.


March 5, 2012

NEW JERSEY PROBATE ATTORNEYS EXAMINE APPELLATE RULING ON THE DOCTRINE OF PROBABLE INTENT

Plaintiff and decedent lived together as partners in the decedent’s home.  The plaintiff and decedent had two conversations where the decedent promised to give his home to the plaintiff debt free.  The decedent directed his attorney through a letter to help plan his estate by “liquidating the debt encumbering his real estate so that it passes to his beneficiaries free and clear; not wanting the properties sold to satisfy the debt; and desiring that his life insurance, worth slightly over $1million, be used to pay off the mortgage balances.”  The trial court held that the plaintiff failed to meet the burden of establishing the decedent’s intention of giving him the property debt-free.  The appellate division affirmed.

On appeal, the Supreme Court reversed, holding that the application of the doctrine of probable intent demonstrates that Theodore Payne intended to bequeath his New Jersey property to his partner debt-free.

 


February 27, 2012

NEW JERSEY PROBATE LAWYERS CONSIDER RULING REAFFIRMING THAT ATTORNEY’S FEES SHOULD BE PAID FROM THE ESTATE

The decedent died with a will that gave a 55% share of her estate to her son and 45% to her daughter.  The son was named the executor of the estate, but did not administer the estate for a year.  The court held that the son breached his fiduciary duties to the estate and ordered him to pay his sibling’s attorney’s fees.  The Appellate Court reversed, and the Supreme Court affirmed the Appellate Court.  The court held that “The circumstances here do not present sufficient cause to depart from New Jersey’s deep-rooted adherence to the “American Rule,” a rule that requires that each party bear their own attorneys’ fees. In this case, the successful sibling’s attorneys’ fees nonetheless should be reimbursed by the estate.”


February 20, 2012

Marte v. Oliveras, A4383-03

NEW JERSEY GUARDIANSHIP ATTORNEYS REVIEW RULING ON SUMMARY JUDGMENT STANDARD IN GUARDIANSHIP DISPUTE

Plaintiff and defendant were divorced and the mother appointed as guardian when their daughter was severely burned in an accident.  After a $3 million annuity judgment was awarded in favor of the daughter, the mother named herself as the primary contingent beneficiary for the annuity.  After the daughter died, the father sued the mother alleging that he was not aware of and did not consent to the mother’s actions in naming herself as the beneficiary.  The trial judge granted summary judgment in favor of the mother, dismissing the case. 

On appeal, the father’s New Jersey Guardianship lawyer argued that there were material disputes of fact, and that the trial court erred in granting summary judgment.  The New Jersey court of appeals agreed and overturned the lower court decision. 


January 14, 2005


In the Matter of Queiro, A3705-03

 

NEW JERSEY PROBATE ATTORNEYS REVIEW DECISION ON TESTAMENTARY GUARDIAN WISHES VS. THE RIGHTS OF THE PARENT

A mother was granted guardianship over her mentally handicapped adult daughter after the parents were divorced.  In the mother’s will, she provided for testamentary guardians.  The probate court applied N.J.S.A. 9:2-5, dealing with the death of a parent having custody of a minor child.  The New Jersey Appellate Division held that the probate court incorrectly applied the statute in declining to appoint the father as guardian.  The Court stated that the decision of guardianship must be made based on the best interest and welfare of the mental incompetent, giving due regard to the testator’s expressed design.

 

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Copyright © 2000/2011 by New Jersey Attorney, John F. Renner. All rights reserved. Any reproduction of all or any part of this document, without prior permission of John F. Renner, Esq. is expressly prohibited.