Estate/Will/Trust Inheritance Contests
Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Administrator of the Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.
Executor Duties and Responsibilities
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At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below.
In General, the executors job is to
1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).
Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Step 1: Probate. The executor must probate the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The courts decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.
Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.
Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
Undue Influence to challenge a Will or Power of Attorney
A
grievance based upon undue influence may be sustained by showing that
the beneficiary had a confidential relationship with the party who
established the account. Accordingly, if the challenger can prove by a
preponderance of the evidence that the survivor had a confidential
relationship with the donor who established the account, there is a
presumption of undue influence, which the surviving donee must rebut by
clear and convincing evidence.
[Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007).]
Although
perhaps difficult to define, the concept encompasses all relationships
'whether legal, natural or conventional in their origin, in which
confidence is naturally inspired, or, in fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20,
34 (1988) (internal citation omitted). And while family ties alone may
not qualify, parent-child relationships have been found to be among the
most typical of confidential relationships. DeFrank, supra, slip op. at 13 (citing Ostlund, supra, 391N.J. Super. at 401).
In
the context of inter vivos gifts, a presumption of undue influence
arises when the contestant proves that the donee dominated the will of
the donor or when a confidential relationship exists between the donor
and done. Pascale, supra, 113 N.J. at
30 (internal citations omitted). Where parties enjoy a relationship in
which confidence is naturally inspired or reasonably exists, the person
who has gained an advantage due to that confidence has the burden of
proving that no undue influence was used to gain that advantage, In re Estate of Penna,322 N.J. Super. 417,
423 (App. Div. 1999), and the donee has the burden of showing by clear
and convincing evidence not only that 'no deception was practiced
therein, no undue influence used, and that all was fair, open and
voluntary, but that it was well understood.' In re Estate of Mosery, 349 N.J. Super. 515, 522-23 (App. Div. 2002) (citing In re Dodge, 50 N.J. 192, 227 (1967)).
The
person receiving gifts and greater benefit had a burden to show no
deception was practiced and that all of the transactions were fair, open
and voluntary, and that they were well understood.
One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey,
87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden
of proof establishing undue influence shifts to the proponent when a
will benefits a person who stood in a confidential relationship to the
decedent and there are suspicious circumstances, which need explanation.
The suspicious circumstances need only be slight. Id.
at 176. Moreover, when the evidence is almost entirely in the
possession of one party and the evidence points to the proponent as
asserting undue influence, a clear and convincing standard may be
applied rather than the normal burden of proof of preponderance of the
evidence. Id. at 183.
Furthermore, the Haynes
analysis was extended to situations in which there is a transfer of
property where the beneficiary of the property and an attorney is on one
side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).
The court in Oachs
determined that under circumstances such as these the donee bears the
burden of proof to establish the validity of the gift, even in
situations in which the donee did not dominate the decedent’s will. Id.
at 485. This rule was established to protect a donor from making a
decision induced by a confidential relationship the donee possesses with
the donor. Id. Again, the burden is a clear and convincing standard. Id.
The Supreme Court in Pascale v. Pascale,
113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a
donee that he/she is dependent upon, a presumption arises that the donor
did not understand the consequences of his/her act. In these situations
the donee must demonstrate that the donor had disinterested and
competent counsel. Id. Likewise,
undue influence is conclusive, when a mentally or physically weakened
donor makes a gift without advice or a means of support, to a donee upon
whom he/she depends. Id.
A confidential relationship can be found to exist when one is certain that the parties dealt on unequal terms. In re Stroming’s Will,
12 N.J. Super. 217, 224 (1951). The appropriate inquiry is if a
confidential relationship existed, did the parties deal on terms and
conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948).
Suspicious
circumstances are not required to create a presumption of undue
influence with regard to inter vivos gifts and the presumption of undue
influence is more easily raised in an inter vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v. Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987).
Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale,
113 N.J. 20, 29 (1988). However, when a party alleges undue influence
with regard to an inter vivos gift, the contesting party must prove
undue influence existed or that a presumption of undue influence should
arise. Pascale, supra, 113 N.J. at 30.
A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id.; see also Seylaz v. Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v. Stanton,
280 N.J. Super. 478 (App. Div. 1995) (holding that where a confidential
relationship existed and that the donor did not rely upon the donee, a
shifting of the burden was still appropriate); In re Neuman’s Estate,
133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context
“Such burden does not shift merely because of the existence of a
confidential relationship, without more, as in the matter of gifts inter
vivos.”)
The In re Dodge
court explained why a presumption of undue influence arises in a
confidential relationship and stated: “In the application of this rule
it is not necessary that the donee occupy such a dominant position
toward the donor as to create an inference that the donor was unable to
assert his will in opposition to that of the donee.” In Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in explaining the rule’s application:
Its
purpose is not so much to afford protection to the donor against the
consequences of undue influence exercised over him by the donee, as it
is to afford him protection against the consequences voluntary action on
his part induced by the existence of the relationship between them, the
effect of which upon his own interests he may only partially understand
or appreciate. In re Dodge, supra, 50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A. 1904).
In
sum, once it is proven that a confidential relationship exists the
burden shifts to the donee to show by clear and convincing evidence that
no undue influence was used. Although the case law indicates suspicious
circumstances need not be shown the donee must show all was fair, open
and voluntary, no deception was practiced and that the transaction was
well understood. Pascale, supra, 113 N.J. at 31; see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra,
5 N.J. at 173. Furthermore, confidential relationships arise in all
types of relationships “whether legal, natural or conventional in their
origin, in which confidence is naturally inspired, or, in fact,
reasonably exists.” In re Fulper’s Estate, 99 N.J. Eq. 292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34. It appears confidential relationships exist in all cases in which:
The
relations between the [contracting] parties appear to be of such a
character as to render it certain that they do not deal on terms of
equality, but that either on the one side from superior knowledge of the
matter derived from a fiduciary relation, or from over-mastering
influence; or on the other from weakness, dependence or trust
justifiably reposed, unfair advantage is rendered probable. Pascale, supra, 113 N.J. at 34, quoting In re Fulper, supra, 99 N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.
In
determining whether the Defendant was the dominant person in the
relationship there is no clear-cut rule and instead the court must look
to the particular circumstances of the matter. In re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18 N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper
the court determined that a confidential relationship existed in a
father-son relationship in which the father was advanced in age, weak
and physically depended upon the son. Moreover, since the father sought
the son’s assistance on business matters, lived with the son during the
winter months and gave the son joint and several power over his checking
account an actual repose of trust and confidence in the son was
demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.
In the Giacobbi case, supra,
a confidential relationship was determined to exist between a mother
and daughter, even though the mother did not suffer from mental or
physical infirmity. There the mother was found to be alert, active, and
somewhat independent. However, she turned to the daughter for small
issues and problems when they occurred. Giacobbi, supra, 18 N.J. Super. at 617.
Therefore,
the burden can shift to Defendant to prove by clear and convincing
evidence the transaction was not unduly influenced. Furthermore, where a
donor makes an “improvident” gift to the donee upon whom she depends
that strips the donor of all or virtually all their assets, as here, a
presumption arises that the donor did not understand the consequences of
their act. Pascale, supra, 113 N.J. at 31, citing Vanderbach v. Vollinger,
1 N.J. 481, 489 (1949). Under those circumstances the donee must
establish that the donor had the advice of competent and disinterested
counsel. Id. citing Vanderback, supra, 1 N.J .at 488-89.
Similarly,
when a mentally or physically weakened donor makes a gift to a donee
whom the donor is dependent upon, without advice, and the gift leaves
the donee without adequate means of support, a conclusive presumption of
undue influence arises. Id. citing Seylaz, supra,
5 N.J. at 173. However, when a donor is not dependent upon the donee
“independent advice is not a prerequisite to the validity of an
improvident gift even though the relationship between the parties is one
of trust and confidence.” Id. citing Seylaz, supra, 5 N.J. at 173.
Although
suspicious circumstances are not required to be established in an inter
vivos transfer for a presumption of undue influence to exist, thereby
shifting the burden of proof, Plaintiff has raised the issue. Pascale, supra, 113 N.J. at 30.
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 361 NJ Super. 478 (App. Div. 2003)
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.
The
court held 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.
The
court held: 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
court held: 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
court held 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.
Removing the Executor of a Probate Estate
By Kenneth A. Vercammen, Esq.
In
New Jersey, the court and surrogate do not supervise how an executor or
administrator handles the estate. Unfortunately, the Executor
occasionally fails to timely carry out their duties. They may fail to
file tax returns, fail to keep records, misappropriate funds or ignore
instructions under the Will. If you are not satisfied with the handling
of the estate, you can have an attorney file a Complaint in the Superior
Court. If there is no Will, someone can petition the surrogate to be
appointed as administrator of the estate.
COMPLAINT FOR ACCOUNTING
A
Complaint for Accounting is filed with the Probate Part to request on
accounting, removal of the current executor and selection of a new
person to administer and wrap up the estate.
A
signed certification of one or more beneficiaries is needed. In
addition, an Order to Show Cause is prepared by your attorney. The Order
to Show Cause is to be signed by the Judge directing the executor,
through their attorney, to file a written answer to the complaint, as
well as appear before the court at a specific date and time.
As
with a litigated court matter, trials can become expensive. Competent
elder law/probate attorney may charge an hourly rate of $300-$450 per
hour, with a retainer of $4000 needed. Attorneys will require the full
retainer to be paid in full up front. We charge a consult fee of $200 to
discuss the case.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.
(5)
That the executor be removed as the executor/administrator of the
estate and that someone else be named as administrator of the estate.
(6)
That the executor be barred from spending any estate funds, be barred
from paying any bills, be barred from taking a commission, be barred
from writing checks, be barred from acting on behalf of the estate,
except as specifically authorized by Superior Court Order or written
consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors
are entitled to receive a commission to compensate them for work
performed. Under NJSA 3B:18-1 et seq., Executors, administrators and
other fiduciaries are entitled to receive a commission on both the
principal of the estate, and the income earned by assets.
However,
if you have evidence that the executor has breached their fiduciary
duties or violated a law, your Superior Court accounting complaint can
request that the commissions be reduced or eliminated.
SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally,
a family member is living in a home owned by the decedent. To keep
family harmony, often this family member is permitted to remain in the
home temporarily. However, it may later become clear that the resident
has no desire on moving, and the executor has neither an intention to
make them move nor to sell the house. The remedy a beneficiary has can
be to have your attorney include in the Superior Court complaint a count
to
1) remove the executor
2)
remove the tenant and make them pay rent to the estate for the time
they used the real property since death without paying rent
3) compel the appraisal of the home and, thereafter, the sale of the property
4) make the executor reimburse the estate for the neglect or waste of assets.
FILING SUIT IN AN ESTATE CONTESTRULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT
4:84-1. In General
In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.
4:84-2. Probate in the Superior Court
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.
4:84-3. Contested Administration
Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogates Court.
4:84-4. Appointment of Substituted Trustees
An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.
4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator
No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.
RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATES COURT: GENERAL PROVISIONS
4:85-1. Complaint; Time for Filing
If a will has been probated by the Surrogates Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.
4:85-3. After-Discovered Will
(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.
(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.
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