Monday, November 17, 2008

3B: 1-9 Effect of fraud and evasion

3B: 1-9 Effect of fraud and evasion

Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser or lender) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.

3B: 1-8 Application of title to wills

3B: 1-8 Application of title to wills

The provisions of this title shall apply to any wills of decedents dying on or after September 1, 1978.

3B: 1-7 Exclusion of property passing to a testamentary trustee other than by devise from rights of personal representative or creditors of decent

3B: 1-7 Exclusion of property passing to a testamentary trustee other than by devise from rights of personal representative or creditors of decent

Property passing to a testamentary trustee other than by devise shall not be subject to rights of, powers of or to administration by a personal representative or to rights of creditors to any extent beyond that to which it would otherwise be if the testamentary trust was an inter vivos trust.

3B: 1-6 Law governing rights, duties and powers of fiduciaries

3B: 1-6 Law governing rights, duties and powers of fiduciaries

The provisions of this title shall govern the rights, duties, and powers of successors and fiduciaries relating to the administration of all estates except that the validity and propriety of all acts done by a fiduciary and all rights established in successors prior to September 1, 1978, shall remain determined under the law as then in effect.

3B: 1-5 Effect upon vested rights and remedies

3B: 1-5 Effect upon vested rights and remedies

The repeal of any sections, acts or parts of acts by the enactment of this title shall not affect any right now vested in any person pursuant to any sections, acts or parts of acts so repealed, nor any remedy where an action or proceeding thereunder has been instituted and is pending on the effective date of this title.

3B:1-4 Contractual arrangements relating to death

3B:1-4 Contractual arrangements relating to death

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Monday, November 10, 2008

3B:1-3. Devolution of property upon death

Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his ill or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate, or in the absence of testmentary dispostion, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject ot rights of creditors and to aministration.

L. 1891, c. 405 3B:1-3, eff. May 1, 1982

For more information go to www.newjerseyelderlaw.com

3B:1-2 Definitions: I to Z

3B:1-2 Definitions: I to Z

"Issue" of a person includes all of his lineal descendants, natural or adopted, of all generations, with the relationship of parent and child at each generation being determined by by the definition of child and parent.

"Local administration" means administration by a personal representative appointed in this State.

"Local fiduciary" means any fiduciary who has received letters in this State and excludes foreign fiduciaries who acquire the power of local fidcuary persuant to this title.

"Mental incompetent" means a person who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs.

The term "mental incompetent" is also used to dsignate a person who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that he lacks sufficient capacity to govern himself and manage his affairs.

The term "mental incompetency" and "mental imcompetent" refer to the state or condition of a "mental incompetent" as hereinbefore defined.

"Minor" means a person who is under 18 years of age.

"Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.

"Parent" means any person entitled to take or would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent foster parent of grandparent.

"Personal representative" includes executor, administrator, successor personal repreentative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.

"Resident creditor" means a person domiciled in, or doing business in this State, who is, or could be, a caimant against an estate.

"Security" includes any note, stock, treasury stock, bond, mortgage, financing statement, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title of lease, collateral, trust certificate, transferable share, voting trust certificate or, in general, any interest or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.

"Successor personal representative" means a personal representative, other than a special administrator, who is appinted to succeed a previously appointed personal representative.

"Successors" means those persons, other than creditors, who are entitiled to real and personal property of a decedent under his will or the laws governing intestate succession.

"Testamentary trustee" means a trustee designated by will or appointed to exercise a trust created by will.

"Trust" includes any express trust, private, or charitable , with additions thereto, wherever and however created. It also includes a trust created by judgement under which the trust is to be administered in the matter of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, guardinships, personal representatives, trust accounts created under the "Multiple-party Deposit Account Act," P.L. 1979, c 491 (C. 17:161-1 et seq), gifts to minors under the "New Jersey Uniform Gifts to Minors Act," P.L.1963, c.177 (C.46:38-13 et seq.), business trusts providing for certificates to be issued to beneficiaries, common trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividents, interest, salaries, wages, profits, pensions, or employee benefits of any kidn, an dany arrangement under which a person is a nominee or escrowee for another.

"Ward" means a person for whom a guardian is appointed or a person under the protection of the court.

"Will" means the last will and testament of a testator or testatrix and includes any codicil.

L. 1981, c 405 3B: 1-2, eff. May 1, 1982.

For more information go to www.newjerseyelderlaw.com

Fees Charged by Attorneys

The Courts Rules of Professional Conduct do not specifically permit us to discuss fees over the phone. We have found that most people desire an experienced, competent attorney, not the cheapest, least expensive attorney. Attorneys fees usually cannot be estimated until we are provided with facts and documents in writing.
Litigation Matters
For Litigation Matters not involving personal matters Personal Injury, experienced attorneys charge between 200 -$375 per hour for their service and advice. Wall Street Attorneys in New York will charge even $400 per hour.

Criminal, DWI, Traffic
These are usually handled on a Flat Fee basis, not hourly.

Wills, Power of Attorney Document Preparation
Documents are usually prepared on a Flat Fee basis. If attorney charges are requested after the document is prepared, there will be a change in charges.

Probate / Administration of Estate
Probate matters are handled on an hourly basis. For Litigation Matters not involving personal matters Personal Injury, experienced attorneys charge between 200 -$375 per hour for their service and advice.

Persona Injury
Handled on a 33 % contingency. No fee unless recovery.

COOPERATING & WORKING WITH YOUR ATTORNEY
When do I need a lawyer?

This really depends on your situation. Generally, you should think
about obtaining legal advice regarding:

* adoptions
* Serious accidents
* Deaths
* Business transactions
* Starting or terminating a business
* Being accused of a crime
* When someone sues you
* Planning for distribution of your property and/or care of your young children after your death
* Writing a will
* Retirement planning

If a problem like one of these faces you, call my office as soon as you can. Many simple problems get more complicated as time passes.
When in doubt, talk with me. A brief in office consultation can help you decide if a lawyer¹s assistance is needed.

When I get a lawyer, what can I expect?
In most cases, my representation follows a careful step-by-step process that may include:
* Conferring with you, the client to pinpoint the situation and determine what you wish to accomplish
* Gathering and analyzing all available facts and information
* Interviewing everyone involved with the case
* Studying laws and previous decisions that may apply to your situation
* Offering advice and preparing contracts or other appropriate documents (such as wills, incorporation papers, filings with zoning boards, etc).
* Preparing legal arguments for contested matters, and representing you in any negotiations for settlement and court appearances.

Don¹t Try To Cut Corners When Facing Crucial Issues in Your Life.

It might be dangerous for you to choose a lawyer purely on an estimate of fees. ³Shopping around" for the "cheapest " lawyer may not be the best approach because that lawyer may not be the most qualified to handle the case. You also want to be certain an attorney is doing most of the work, rather than an inexperienced new lawyer or legal secretaries or clerks.

What Should I Do at my First Meeting Concerning Legal Advice?

* Be prepared to give a brief explanation of your legal problem‹ and what ultimate result you would like the lawyer to help you achieve.

* Bring copies of any written records that explain your problem.

*Write down questions you want the lawyer to answer.

How Do I Insure a Good Lawyer-Client Relationship?

Remember, good legal assistance is not a one-way street. You have to cooperate with my office if you really want to be helped.
The attorney-client relationship is confidential except, according to the Rules of Professional Conduct, if it is necessary for the lawyer to disclose information to the proper authorities in order to prevent a client from committing a criminal, illegal or fraudulent act likely to perpetrate a fraud upon a tribunal. Here are some important tips to follow:

* Please provide me with an objective statement of all the facts. According to the Rules of Professional Conduct, a lawyer may ³counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.² However, an attorney is not permitted to ³counsel or assist in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law.²

* Don¹t look for simple, quick answers to complex questions. Lawyers are justifiably cautious in drawing conclusions or answering questions about complicated legal problems. Attorneys and judges know that cases are rarely ³open and shut.²

* Let my office know about any new developments in your case.

* Don¹t hesitate to ask questions about any matter relevant to your case. Remember, though, I am not a doctor, psychiatrist, marriage counselor or financial advisor.

* Work with my office. If you don¹t understand why something should be done or have doubts about some action recommended, ask questions and get an explanation.

* Be patient - Don¹t look for instant results. Trust my office and I to follow through on the case but don¹t hesitate to ask for progress reports from time to time.

About Legal Fees, What Can I Expect?
The time, study, experience and attention your attorney gives your problem all determines the legal fees. I have invested tens of thousands of dollars on such things as education, staff, books, journals, rent, office equipment, and insurance. Consequently, a lawyer must set a charge for his services that is both reasonable and adequate to cover his own investment and expenses.

Because no two legal matters are exactly the same, fees vary widely. Some factors involved are:
* The amount of time and labor spent on your problem and the complexity of your case. To a lawyer, time is money. Most lawyers keep very careful records of the time they and their staff spend on your case. Many attorneys will charge specific fees for meetings, research, courtroom appearances, telephone conversations, etc. This amount of time your lawyer may be required to spend will vary according to the case involved.
* The emergency nature of the case or the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer. If the lawyer has to ³drop everything² to handle your matter, the fee may be higher.
* Nature and length of the professional relationship with the client. In a matrimonial matter there must be a written retainer agreement.
* Whether the fee is fixed or contingent. The results obtained often are considered in setting the fee (except for matters in which contingent fees are prohibited by law and the Rules of Professional Conduct). Of course, unless my office takes your case on a contingent fee basis, we except to be paid, no matter what the outcome. (Results can never be guaranteed.)
* If you are suing for compensation for injuries caused by another person¹s negligence, my office may be willing to represent you for a contingent fee. Under this arrangement, I will receive no fee if there is no recovery. (However, you must still pay certain costs directly related to your lawsuit.) A contingent fee agreement must be in writing and must state the method by which the fee is determined, including the percentage accruing to the attorney in the event of settlement, trial, or appeal, litigation and other expenses to be deducted before or after the contingent fee matter, I will provide you with a written statement of the outcome of the matter, and if there is recovery showing the remittance to the client and its method of determination. Under this fee arrangement, I must invest my own time, effort and office expenses without advance payment. This plan permits any injured person, regardless of their financial resources, to be represented by my effort in cases of this type.

NJ Legislation 3B:1-1 Definitions: A to H

NJ Legislation 3B:1-1 Definitions: A to H

As used in this title, unless otherwise defined:
"Administrator" includes general administrators of an intestate and unless restricted by the subject or context, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, temporary administrators and adminstrators pendente lite.
"Beneficiary," as it relates to trust beneficiaries includes a person who has any present or future interest, vested or contingent and also included the owner of an interest by assignment of other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust.
"Child" means any individual, including a natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant.
"Claims" include liabilities whether arising in contract, or in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent, including funeral expenses and expenses of administration, but does not include estate of inheritance taxes, demands, or disputes regarding title to specific assets alleged to be included in the estate.
"Confiduciary" means each of two or more fiduciaries jointly serving in a fiduciary capacity.
"Devise," when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
"Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee is the devisee and the beneficiaries are not devisees.
"Distributee" means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A trustee is a distributee only to the extent of a sitributed asset or increment thereto remaining in his hands. A beneficiary of a trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative.
"Domiciliary foreign fiduciary" means any fiduciary who has received letters, or has been appointed, or is authorized to act as a fiduciary, in jurisdiction in which the decedent was domiciled at the time of his death, in which the ward is domiciled or in which is located the principal place of the administration of a trust.
"Estate" means all of the property of a decedent, minor or mental incompetent, trust or other person whose affairs are subject to this title as the property is originally constituted and as it exists from time to time during adminstration.
" Fiduciary" includes executors, general adminstrators of an intestate, adminstrators with the will annexed, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequedum, administrators ad litem and other limited fiduciaries.
"Guardian" means a person who has qualified as a guardian of a person or estate of a minor or mental incompetent persuant to testamentary or court appointment, but excludes on who is merely a gaurdian ad litem.
"Heirs" means those persons, including the surviving spouse, who are entitlesd under statutes of intestate succession to property of a decedent.
L. 1981, c 3b:1-1, eff. May 1, 1982.

For more information go to www.centraljerseyelderlaw.com

Wednesday, November 5, 2008

Wills, Probate and Elder Law - April 8, 2008

WILLS, PROBATE AND ELDER LAW
WHERE: East Brunswick High School Community Adult Education
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
COST: $29
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
East Brunswick Adult & Community
Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8
$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal/ municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com

ESTATE PLANNING FOR GAY AND LESBIAN COUPLES WHO HAVE NOT ENTERED INTO A CIVIL UNION OR REGISTERED AS DOMESTIC PARTNERS "SAVE MONEY AND PROVIDE FOR YOU

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of Americans with assets do not take the time to create a Will.
National statistics indicate that 80% of Americans die without leaving a Will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills). Whatever the excuse, it is clear that people would benefit from having a Will.
In the absence of a Will or other legal arrangement to distribute property at death, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.
IF YOU HAVE NO WILL:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate: * State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Possible additional State inheritance taxes and Federal estate taxes * If you have no s Civil Union , spouse, or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits between your partner and your family When your loved ones are grieving and dealing with death, they shouldn't be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON:
1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC 3RD: DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH: POWERS 13TH: SELF PROVING WILL 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
* Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will *Significant changes in the value of your total assets or in any particular assets which you own * Changes in your relationships * A change in your State domicile
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving
*Annual changes in tax law
MAY I CHANGE MY WILL?
Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared by an attorney or a Codicil prepared by an attorney signed to legally change portions of the Will.
SAVE MONEY
Probate in New Jersey is not difficult. Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don't pinch pennies now to the detriment of your Partner and beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs approximately $300.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have. Also, ascertain if your Will is "self-proving", which would dispense with having to find the Will's witnesses after death.
WHAT IS A WILL?
"A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed. You should remember that the term "property" under the law includes "real estate as well as other possessions and rights to receive money or items of value." Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
ADMINISTRATION OF AN ESTATE
If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items: 1. The Death Certificate 2. The Original Will 3. Names and Addresses of decedent's next of kin and will beneficiaries 4. Minimum of $100.00 for Surrogate fees
A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death.
OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY -Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now -Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney
What are these powers of attorney?
A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.
Why is Power of Attorney so important?
Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.
The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.
Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:
1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.
2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.
3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.
4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.
5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.
7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
Gay and Lesbians- Living Will/ Advance Directives Planning Ahead For Your Health Care:
Compiled by Kenneth Vercammen
In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Your partner cannot access your assets. Your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs. All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.
WHY LIVING WILLS Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn. States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision. Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can't make them for ourselves? If we can't make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will: By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and can't make decisions for yourself someone will have to decide about your medical care. Doesn't it make sense to
• Have your partner or another person you trust make decisions for you,
• Provide instructions about the treatment you do and do not want, or
• Both appoint a person to make decisions and provide them with instructions.
About Kenneth Vercammen Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on Probate, personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Wills and Estate Planning

"SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES "
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of us do not take the time to create a will.
National statistics indicate that 80% of Americans die without leaving a will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich need to have wills). Whatever the excuse, it is clear that people would benefit from having a will.
In the absence of a will or other legal arrangement to distribute property at death, the state must step in to administer the estate. The result can be lengthy delays before the rightful heirs receive their property. And because the state has no instructions from the deceased, no charitable gifts will be made.
IF YOU HAVE NO WILL:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Judge determines who gets custody of your children * Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits within your family When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns. Careful estate planning helps take care of that.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL:
1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS 3RD: DISPOSITION TO SPOUSE 4TH: DISPOSITION OF REMAINDER OF ESTATE 5TH: CREATION OF TRUSTS FOR SPOUSE 6TH: CREATION OF TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS 11TH: SURETY OR BOND 12TH: POWERS 13TH: AFTERBORN CHILDREN 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE
A will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
* Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will
*Significant changes in the value of your total assets or in any particular assets which you own
* A change in your domicile
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will
*Annual changes in tax law
MAY I CHANGE MY WILL?
Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.
SAVE MONEY
Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. With a well-drawn Will, you may also reduce death taxes and other expenses. Don't pinch pennies now to the detriment of your beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.
The proper preparation of a Will should involve a careful analysis of the client's assets, family and his/her desires. Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives. The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs approximately $100.00 to $500.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have. Be sure your Will takes into account the 1997 Federal Tax changes and all New Jersey Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the WillĂ­s witnesses after death.
WHAT IS A WILL?
“A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed and who will take care of your minor children if the other parent should die ". You should remember that the term “property” under the law includes "real estate as well as other possessions and rights to receive money or items of value.” Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
ADMINISTRATION OF AN ESTATE
If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items: 1. The Death Certificate 2. The Original Will 3. Names and Addresses of decedent's, next of kin and will beneficiaries 4. Minimum of $80.00 for Surrogate fees
A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death.
OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY -Trusts (and Medicare Trusts) -Power of Attorney- to allow a trusted person to administer your assets during your lifetime, either upon disability or now -Living Wills- to state your wishes concerning medical care in the event of your serious illness

Wills, Children, and Guardians

There may come a time when a parent is unable, due to physical or mental incapacity, to take care of their minor children. In these circumstances, those caring for the children as well as the courts will need direction.
By writing and executing a Will which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for young families with minor children as they are for senior citizens.
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian. National statistics indicate that more than 50% of Americans die without leaving a will. In the absence of a will or other legal arrangement to distribute property at death, the State must step in to administer the estate and decide who gets custody of your children and handle their money.
This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.
IF YOU HAVE NO WILL (LEGALLY REFERRED TO AS "INTESTATE SECESSION"):
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you * Additional expenses will be incurred by your heirs and extra work will be required by the heirs of their attorney to qualify an administrator * The Judge determines who gets custody of your children
* Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or relatives, the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits within your family
When loved ones are grieving and dealing with death, they shouldn't be overwhelmed with Financial concerns. Careful estate planning helps take care of that.
Guardians
Most individuals appoint their spouse to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event your spouse predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.
Trustee
Select a trusted person, a close relative or friends, who will invest and hold your children's money. In your Will you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.
Children born after you sign the Will
Many people direct that the provisions of their Will also applies to afterborn children. Accordingly, if you have any additional children subsequent to the execution of this Will, then wherever you have designated only your named children, you intend that all of your children shall share equally in the relevant provisions of your Will.
In addition to having a formal Last Will and Testament individuals are encouraged to have a Power of Attorney and also Living Will. Moreover, we also recommend they plan ahead and write messages to their family and anticipated executor detailing their specific desires regarding funeral and burial. Written instructions to your family and executor containing information and guidance will minimize uncertainty, confusion, and possible oversights following your death.
Conclusion
While the preceding article contains possible items to be discussed with your family, attorney and executor, the article is by no means exhaustive. A number of these items may not be applicable in your situation, and probably there are many others that are applicable. The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.

Wills

NOTICE TO CREDITORS TO PRESENT CLAIMS
When a NOTICE TO CREDITORS is published, the executor/trix, administrator/trix shall mail a copy of the NOTICE TO CREDITORS to each creditor of the estate of which the personal representative knows or which can be ascertained by reasonable inquiry, by ordinary mail to the creditor's last known address.
TAXES THAT INFLUENCE YOUR WILL
Three kinds of taxes can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.
New Jersey Inheritance Tax Inheritance Tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person or to receive a gift in anticipation of death. The tax is determined by the amount inherited and by the relationship of the individual to the deceased. In New Jersey, no one is taxed for receiving property, including money, worth up to $499.99.
Inheritance Tax Rates Spouses: All property passing to a spouse from a deceased spouse who died since January 1, 1985 is free of New Jersey inheritance tax. Forms for proving the exemption on checking accounts, savings accounts, Certificates of Deposit, etc. may be obtained from the institution holding the funds. Parents, grandparents, children, grandchildren, adopted children, or stepchildren: The first $50,000.00 is exempt where the decedent died between July 1, 1985 and July 1, 1986. The exemption is raised to $150,000.00 for decedents dying between July 1, 1986 and July 1, 1987; to $250,000.00 for decedents dying between July 1, 1987 and July 1, 1988. After July 1, 1988 all property passing to such persons is exempt. Brother, sister, daughter-in-law, or son-in-law: If the inheritance is $500.00 or more, the tax is 11 percent of the entire amount up to $1,100,000.00 and increases gradually thereafter. For persons dying after July 1, 1988 the exemption is $25,000.00. Every other beneficiary pays 15 percent on the total amount up to $700,000.00. Tax is 16 percent on remainder. Charitable, religious, or benevolent institutions: Each beneficiary in this class is tax exempt entirely. Money or property left the State of New Jersey, a municipality, or a nonprofit educational institution is exempt from inheritance tax.
Filing New Jersey Inheritance Tax Returns A substantial number of estates remain taxable and even some on which no tax is due require the filing of a New Jersey Inheritance Tax Return. Tax forms and instructions are furnished by the District Supervisor of the Transfer Inheritance Tax Bureau in the county where the decedent (a deceased person) resided at the time of death. The Executor, administrator or a personal representative files the completed inheritance tax return with the District Supervisor of the Transfer Inheritance Tax Bureau.
Clearing Title and Transferring Property For those estates that are taxable, unpaid inheritance taxes are a lien on New Jersey real estate and shares and stocks of corporations and financial institutions organized under laws of New Jersey. If there is no tax, the Transfer Inheritance Tax Bureau sends waivers that are required to clear title to the land and transfer ownership of bank accounts or securities.
If there is a tax, a bill is submitted and the waivers sent when the tax is paid. To clear title to real property, a waiver is filed with the county clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver in the estate of the one first dying. To transfer stocks, shares, and securities of financial institutions and New Jersey corporations, the executor, administrator or personal representative sends waivers to them when asking transfer.
Inheritance tax returns must be filed and the tax paid within 8 months after decedent's death to avoid interest, charged at the rate of 10 percent per year. Although the interest penalty cannot be waived beyond this 8-month period, the time for filing may be extended on application to the bureau. This tax information is general and may not apply to each estate; therefore, it is advised that the inheritance tax supervisor be contacted for further information before the estate is settled.
Gift Tax New Jersey does not levy a tax on gifts, except in anticipation of death. Any gift made within 3 years of death is presumed to be in anticipation of death and may be subject to New Jersey Inheritance tax. An individual may give an amount up to $10,000 to any one person during the calendar year, exempt from tax. A married couple can give up to $20,000 to a person yearly without tax. Any number of tax- free gifts may be made during the year. If you make gifts to one person of more than $10,000 during the calendar year, file a Federal Gift Tax Return with the District Director of Internal Revenue. Gifts between husband and wife are exempt from Federal Gift Tax. Federal Marital Deductions An unlimited amount of real and personal property can be transferred between spouses without Federal Estate Tax. For proper application of the marital deduction, contact your attorney or trust officer at your bank.
SELF PROVING WILLS RECOMMENDED USE SELF PROVING WILLS TO SPEED UP PROBATE
Prior to 1978, New Jersey Probate Rules required one of the two witnesses to a will to travel and appear in the surrogate¹s office and sign a paper to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper.
In 1978, the New Jersey Legislature passed a law to create a new type of will called a ³Self-Proving Will.² In such a will, the person for whom the will is made will sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the will is self proving. When done properly, the execution will not have to locate any witnesses. This usually saves time and money. If your will is not ³self-proving² or if you are unsure, schedule an appointment with an elder law attorney.
GLOSSARY
* Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will. * Beneficiary -- Person named to receive property or benefits. * Codicil -- An addition or supplement made to change or add provisions to a will. * Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits. * Contract -- Legally enforceable agreement. * Decedent -- A deceased person. * Devise -- To give real or Personal Property. * Estate -- Everything a person owns, all real and personal property owned. * Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will. * Intestate -- A person who dies without making a valid will. * Legatee -- Person who receives personal property under a will. * Levied -- To collect by assessment. * Lien -- A charge upon property, real or personal, for the satisfaction of a debt. * Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry. * Probate -- Official proof of the genuineness of a will. * Real property -- Land and buildings. * Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate * Court in the settlement of estates, guardianships, and trusts. * Tenants in common -- Two or more persons owning individual interests in property. * Testator, Testatrix -- The person who makes a will. * Trust -- Property owned and managed by one person for the benefit of another. * Trustee -- Person or institution holding property in trust. * Waiver -- A legal instrument relinquishing a right or lien. * Will -- A legal declaration of the manner in which a person wishes his * estate divided after death. * Witness -- Person who observes the signing of a will and also attests to * the signatures.
Part of the above information from the website of the Surrogate of Cumberland County.
Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Include a Provision For Your Pets in Your Wills

Pets are frequently thought of as part of the family. But what happens when the owner dies? How can pet owners ensure that their pets will be well taken care of? State clearly in your Will where you want your pet to go after your death. This may mean naming a friend or relative who has agreed, in advance, to care for the animal. Source: "Preparing for the Worst- Don't forget the pet who may survive you" The Home New Tribune June 19, 2000 B10

Undue Influence

If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
The testatrix's will was properly rejected as the product of undue influence because the proponent and the testatrix had a confidential relationship and because there were "suspicious circumstances" surrounding the execution of the will. In Re Probate of the Last Will and Testament of Catelli Docket # A-2963-01T5
In the Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust. The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiff's case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the court's public policy rationale. Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self- employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brother's death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so. Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyer's office in Maplewood which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyer's office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later. Following Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppola's son all of the papers relating to Catelli's assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.
Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her. After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an "X" on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli's assets and undertook to gain control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli's death, Thomas' efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli's interest in Excelsior over to Thomas. He continued to refuse after Catelli's death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli's estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli's interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate. The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence. Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy. We appreciate the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature. We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence. The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiff's proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli's 1994 will to probate, appointed George Villone as the Administrator C.T.A., directed Thomas to restore assets to the estate and approved fees and commissions. We agree with the judge's alternate analysis of the probate dispute and we affirm on that ground. Viewed in terms of undue influence, there can be no doubt about the issues before us. The judge identified several factors that supported his analysis of undue influence, including the fact that Thomas retained his own attorney to prepare the documents, that he did so based only on the conversation with Dr. Coppola and without any consultation with Catelli herself, that the documents were markedly different from Catelli's prior will, that Catelli was very debilitated and vulnerable, that the effect of the documents was an immediate vesting of control of all assets in Thomas through the inter vivos trust document, and that Thomas immediately upon the death of Dr. Coppola left his employment and by means of the power of attorney began to pay himself a commission and dispensed substantial gifts to himself and his immediate family, which bespoke self-dealing even prior to the time of the execution of the disputed documents. We concur with the judge's analysis of the effect of these facts. First, Catelli was clearly not well. The nursing administrator who saw her daily conceded that, while she had made progress in recovering from her stroke, her level of functioning was seriously diminished. Her short-term memory was significantly impaired. Her vision had deteriorated substantially. She required total care by the staff at the nursing home, needing daily assistance with feeding, bathing, and other basic needs. During the three days prior to the execution of the document, she did not leave her room, but remained in bed, dozing from time to time and barely communicating with anyone. While she was undoubtedly fond of Thomas, who was virtually her only visitor after the death of Dr. Coppola, she was especially vulnerable to his influence. Moreover, Thomas acted in a manner which made his intentions clear. Even accepting as true his testimony that he learned from Dr. Coppola that Catelli intended to make him her sole heir, his behavior proves that he acted so as to overbear her will. He made no effort to discuss Catelli's intentions with her prior to acting for his unilateral benefit. He knew that Catelli had an attorney in New Jersey who had prepared at least one earlier will, but he deprived Catelli of the opportunity to consult with him. He did so in spite of the urging of his personal attorney from Arizona to have the documents reviewed by New Jersey counsel and to give Catelli the benefit of independent legal advice. He knew as well that the 1994 will left significant assets to the two churches and a hospital, left numerous specific bequests to friends and to a few family members, and included him only as one of the residuary beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all were to be rejected in favor of him alone. Nor did he simply carry out the instruction that he be made her sole heir. Instead, he used his own attorney to secure immediate control of her assets. He knew that Catelli had not previously utilized a trust and he knew from his own lawyer that a living trust with a pour-over will would give him control before Catelli died. In fact as soon as he had the ability to exercise any control through the power of attorney, he gave $30,000 in gifts to himself, his wife and his daughter, an act well in excess of any prior expression of generosity by Catelli and not one she authorized. Shortly thereafter, he embarked on a new career, hiring himself to be the full time manager of her assets, in spite of his lack of any relevant training or experience. Those acts are the behavior not of one with Catelli's interests at heart, but of one bent on his own enrichment at her expense. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale, 113 N.J. 20, 29-31 (1988). Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the will, the law presumes undue influence and the burden is upon the proponent of the will to disprove the presumption. In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). The confidential relationship between Thomas and Catelli is both plain and conceded. See Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280, 282 (1952). The suspicious circumstances surrounding the will need only be "slight" to shift the burden of proof to the proponent to overcome them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blake's Will, 21 N.J. 50, 55-56 (1956). Once the burden has shifted, the will proponent must overcome that presumption by a preponderance of the evidence. Haynes v. First Nat'l State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J. Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J. Super. 1, 5 (App. Div. 1978), aff'd o.b., 78 N.J. 563 (1979). See also Pascale v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears burden of proof by clear and convincing evidence). The record before us discloses no evidence by which Thomas could meet this burden. On the contrary, the record is overwhelmingly supportive of the finding of undue influence. The combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The absence of any evidence tending to negate the presumption and the abundant evidence of self-dealing by Thomas support the conclusion that the testator's will was overborne. The trial judge, having heard and considered the evidence, appropriately found that the burden that had shifted to Thomas was one that he was unable to carry. Affirmed.
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If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate

If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
The testatrix's will was properly rejected as the product of undue influence because the proponent and the testatrix had a confidential relationship and because there were "suspicious circumstances" surrounding the execution of the will. In Re Probate of the Last Will and Testament of Catelli Docket # A-2963-01T5
In the Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust. The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiff's case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the court's public policy rationale. Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self- employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brother's death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so. Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyer's office in Maplewood which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyer's office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later. Following Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppola's son all of the papers relating to Catelli's assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.
Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her. After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an "X" on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli's assets and undertook to gain control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli's death, Thomas' efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli's interest in Excelsior over to Thomas. He continued to refuse after Catelli's death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli's estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli's interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate. The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence. Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy. We appreciate the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature. We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence. The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiff's proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli's 1994 will to probate, appointed George Villone as the Administrator C.T.A., directed Thomas to restore assets to the estate and approved fees and commissions. We agree with the judge's alternate analysis of the probate dispute and we affirm on that ground. Viewed in terms of undue influence, there can be no doubt about the issues before us. The judge identified several factors that supported his analysis of undue influence, including the fact that Thomas retained his own attorney to prepare the documents, that he did so based only on the conversation with Dr. Coppola and without any consultation with Catelli herself, that the documents were markedly different from Catelli's prior will, that Catelli was very debilitated and vulnerable, that the effect of the documents was an immediate vesting of control of all assets in Thomas through the inter vivos trust document, and that Thomas immediately upon the death of Dr. Coppola left his employment and by means of the power of attorney began to pay himself a commission and dispensed substantial gifts to himself and his immediate family, which bespoke self-dealing even prior to the time of the execution of the disputed documents. We concur with the judge's analysis of the effect of these facts. First, Catelli was clearly not well. The nursing administrator who saw her daily conceded that, while she had made progress in recovering from her stroke, her level of functioning was seriously diminished. Her short-term memory was significantly impaired. Her vision had deteriorated substantially. She required total care by the staff at the nursing home, needing daily assistance with feeding, bathing, and other basic needs. During the three days prior to the execution of the document, she did not leave her room, but remained in bed, dozing from time to time and barely communicating with anyone. While she was undoubtedly fond of Thomas, who was virtually her only visitor after the death of Dr. Coppola, she was especially vulnerable to his influence. Moreover, Thomas acted in a manner which made his intentions clear. Even accepting as true his testimony that he learned from Dr. Coppola that Catelli intended to make him her sole heir, his behavior proves that he acted so as to overbear her will. He made no effort to discuss Catelli's intentions with her prior to acting for his unilateral benefit. He knew that Catelli had an attorney in New Jersey who had prepared at least one earlier will, but he deprived Catelli of the opportunity to consult with him. He did so in spite of the urging of his personal attorney from Arizona to have the documents reviewed by New Jersey counsel and to give Catelli the benefit of independent legal advice. He knew as well that the 1994 will left significant assets to the two churches and a hospital, left numerous specific bequests to friends and to a few family members, and included him only as one of the residuary beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all were to be rejected in favor of him alone. Nor did he simply carry out the instruction that he be made her sole heir. Instead, he used his own attorney to secure immediate control of her assets. He knew that Catelli had not previously utilized a trust and he knew from his own lawyer that a living trust with a pour-over will would give him control before Catelli died. In fact as soon as he had the ability to exercise any control through the power of attorney, he gave $30,000 in gifts to himself, his wife and his daughter, an act well in excess of any prior expression of generosity by Catelli and not one she authorized. Shortly thereafter, he embarked on a new career, hiring himself to be the full time manager of her assets, in spite of his lack of any relevant training or experience. Those acts are the behavior not of one with Catelli's interests at heart, but of one bent on his own enrichment at her expense. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale, 113 N.J. 20, 29-31 (1988). Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the will, the law presumes undue influence and the burden is upon the proponent of the will to disprove the presumption. In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). The confidential relationship between Thomas and Catelli is both plain and conceded. See Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280, 282 (1952). The suspicious circumstances surrounding the will need only be "slight" to shift the burden of proof to the proponent to overcome them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blake's Will, 21 N.J. 50, 55-56 (1956). Once the burden has shifted, the will proponent must overcome that presumption by a preponderance of the evidence. Haynes v. First Nat'l State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J. Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J. Super. 1, 5 (App. Div. 1978), aff'd o.b., 78 N.J. 563 (1979). See also Pascale v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears burden of proof by clear and convincing evidence). The record before us discloses no evidence by which Thomas could meet this burden. On the contrary, the record is overwhelmingly supportive of the finding of undue influence. The combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The absence of any evidence tending to negate the presumption and the abundant evidence of self-dealing by Thomas support the conclusion that the testator's will was overborne. The trial judge, having heard and considered the evidence, appropriately found that the burden that had shifted to Thomas was one that he was unable to carry. Affirmed.

Undue Influence by a Family Member

Undue Influence If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
The testatrix's will was properly rejected as the product of undue influence because the proponent and the testatrix had a confidential relationship and because there were "suspicious circumstances" surrounding the execution of the will. In Re Probate of the Last Will and Testament of Catelli Docket # A-2963-01T5
In the Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust. The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiff's case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the court's public policy rationale. Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self- employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brother's death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so. Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyer's office in Maplewood which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyer's office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later. Following Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppola's son all of the papers relating to Catelli's assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.
Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her. After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an "X" on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli's assets and undertook to gain control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli's death, Thomas' efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli's interest in Excelsior over to Thomas. He continued to refuse after Catelli's death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli's estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli's interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate. The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence. Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy. We appreciate the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature. We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence. The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiff's proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli's 1994 will to probate, appointed George Villone as the Administrator C.T.A., directed Thomas to restore assets to the estate and approved fees and commissions. We agree with the judge's alternate analysis of the probate dispute and we affirm on that ground. Viewed in terms of undue influence, there can be no doubt about the issues before us. The judge identified several factors that supported his analysis of undue influence, including the fact that Thomas retained his own attorney to prepare the documents, that he did so based only on the conversation with Dr. Coppola and without any consultation with Catelli herself, that the documents were markedly different from Catelli's prior will, that Catelli was very debilitated and vulnerable, that the effect of the documents was an immediate vesting of control of all assets in Thomas through the inter vivos trust document, and that Thomas immediately upon the death of Dr. Coppola left his employment and by means of the power of attorney began to pay himself a commission and dispensed substantial gifts to himself and his immediate family, which bespoke self-dealing even prior to the time of the execution of the disputed documents. We concur with the judge's analysis of the effect of these facts. First, Catelli was clearly not well. The nursing administrator who saw her daily conceded that, while she had made progress in recovering from her stroke, her level of functioning was seriously diminished. Her short-term memory was significantly impaired. Her vision had deteriorated substantially. She required total care by the staff at the nursing home, needing daily assistance with feeding, bathing, and other basic needs. During the three days prior to the execution of the document, she did not leave her room, but remained in bed, dozing from time to time and barely communicating with anyone. While she was undoubtedly fond of Thomas, who was virtually her only visitor after the death of Dr. Coppola, she was especially vulnerable to his influence. Moreover, Thomas acted in a manner which made his intentions clear. Even accepting as true his testimony that he learned from Dr. Coppola that Catelli intended to make him her sole heir, his behavior proves that he acted so as to overbear her will. He made no effort to discuss Catelli's intentions with her prior to acting for his unilateral benefit. He knew that Catelli had an attorney in New Jersey who had prepared at least one earlier will, but he deprived Catelli of the opportunity to consult with him. He did so in spite of the urging of his personal attorney from Arizona to have the documents reviewed by New Jersey counsel and to give Catelli the benefit of independent legal advice. He knew as well that the 1994 will left significant assets to the two churches and a hospital, left numerous specific bequests to friends and to a few family members, and included him only as one of the residuary beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all were to be rejected in favor of him alone. Nor did he simply carry out the instruction that he be made her sole heir. Instead, he used his own attorney to secure immediate control of her assets. He knew that Catelli had not previously utilized a trust and he knew from his own lawyer that a living trust with a pour-over will would give him control before Catelli died. In fact as soon as he had the ability to exercise any control through the power of attorney, he gave $30,000 in gifts to himself, his wife and his daughter, an act well in excess of any prior expression of generosity by Catelli and not one she authorized. Shortly thereafter, he embarked on a new career, hiring himself to be the full time manager of her assets, in spite of his lack of any relevant training or experience. Those acts are the behavior not of one with Catelli's interests at heart, but of one bent on his own enrichment at her expense. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale, 113 N.J. 20, 29-31 (1988). Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the will, the law presumes undue influence and the burden is upon the proponent of the will to disprove the presumption. In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). The confidential relationship between Thomas and Catelli is both plain and conceded. See Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280, 282 (1952). The suspicious circumstances surrounding the will need only be "slight" to shift the burden of proof to the proponent to overcome them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blake's Will, 21 N.J. 50, 55-56 (1956). Once the burden has shifted, the will proponent must overcome that presumption by a preponderance of the evidence. Haynes v. First Nat'l State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J. Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J. Super. 1, 5 (App. Div. 1978), aff'd o.b., 78 N.J. 563 (1979). See also Pascale v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears burden of proof by clear and convincing evidence). The record before us discloses no evidence by which Thomas could meet this burden. On the contrary, the record is overwhelmingly supportive of the finding of undue influence. The combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The absence of any evidence tending to negate the presumption and the abundant evidence of self-dealing by Thomas support the conclusion that the testator's will was overborne. The trial judge, having heard and considered the evidence, appropriately found that the burden that had shifted to Thomas was one that he was unable to carry. Affirmed.