Resolving disputed Estates can be intellectually and emotionally challenging, but we are up to the challenge. Emotions can be high in these cases, and our role is to keep things in proportion, analyze the law and facts, and do what is necessary to either bring those facts to the court for resolution or bring the parties together to find a way to resolve the conflict.
We have used the court process to compel accountings of Trusts and Estates. We have removed Executors and Trustees for misappropriation of funds and other breaches of fiduciary duties, and we have defended Executors and Trustees from claims of misconduct or mismanagement. We have been involved in complex actions for Guardianship or Conservatorship. We have been involved in cases alleging undue influence (alleging someone coerced or pressured another into making a will or changing an account beneficiary, discussed below). Some of the cases involved millions of dollars, and others a single house or bank account. Richard clerked in the Chancery Division, which includes the probate court, and worked side by side with a retired Chancery Judge in his former firm for 7 years. Amanda clerked for the current Assignment/Probate Judge of Atlantic-Cape Vicinage. This is an area of the law we particularly enjoy and feel highly qualified to handle.
Richard King serves as Trustee to trusts containing millions of dollars of assets. Richard has been appointed by the Court as Trustee for private trusts engaged in litigation and has been appointed to serve as “Attorney Trustee” to wind down a law firm following the death, incapacity, or disbarment of an attorney.
We have sued and defended Trustees and Trusts for breaches of fiduciary duty, mismanagement of funds, and various other claims pertaining to the interpretation and implementation of Trust documents.
What is a Trust?
Trusts come in many different forms and types. Essentially, a Trust is created when one person is entrusted with the property or money to be used for the benefit of another person. Some Trusts are “revocable”, meaning the person creating the trust can change or end the Trust. Some Trusts are “irrevocable”, meaning the person creating it cannot “take it back”. Some Trusts are created during a person’s lifetime (“inter-vivos”), and some come into existence when the creator dies (“testamentary”).
What does a Trustee do?
The Trustee has certain fiduciary duties, meaning legal obligations to behave in a certain way. The most important duties are to protect the property and only use it for the benefit of the beneficiary, and not to use it for the Trustee’s own benefit. In general, some other duties of the Trustee include keeping the beneficiary informed of important matters relating to the trust, maintaining accurate records, investing prudently, accounting for his or her activities, avoiding self-dealing (not benefitting themselves), and considering the well-being of all of the beneficiaries (present and future).
What can I do if I am a beneficiary and my Trustee is not doing things properly?
A beneficiary or future beneficiary may first request the trustee to provide the information or alter their behavior. If the Trustee still is not acting properly, a Beneficiary may take action in court to compel the Trustee to “Account”, or provide information and explain the finances of the Trust or Estate. A Court may order a Trustee to do or stop doing something, and a Court may also remove a Trustee and appoint a new Trustee under certain circumstances.
What can I do if I am a Trustee and I am not sure what should be done?
Sometimes a Trustee does not know what to do in a particular situation, or the Trust document is unclear, or a Trustee does not want to appear unfair in choosing to benefit one Beneficiary over another. In that instance, a Trustee may seek “instructions” from the Court, and many times the Court will tell the Trustee what to do, and in that way, the Trustee can avoid being blamed for “doing the wrong thing” Matter of Duke, 305 N.J. Super. 408, 439 (Ch. Div. 1995), aff’d, 305 N.J. Super. 407 (App. Div. 1997)(“A trustee has a duty to ensure that the estate is distributed in accordance with the testator’s wishes and may seek instruction from the court when there is a valid doubt as to the testator’s intent. “)
Can I get in trouble if I am a Trustee and I make a mistake?
The short answer is yes, but it rarely happens if the Trustee acts in good faith. There is no question a Trustee has duties and has to exercise them with care, and for that reason, it is wise for a Trustee to engage professionals to assist him or her, including accountants, financial advisors, and attorneys. In this way, a Trustee can help insulate themselves from blame, because a Trustee is allowed to rely on a properly selected and licensed advisor. However, if a Trustee does not act with reasonable care and in good faith, then yes, a Trustee can be held responsible for damages. N.J.S.A. 3B:31-72
How much does a Trustee get paid?
You should always check with an accountant or an attorney regarding any fee to be taken as Trustee, and the amount of the fee is established by Statute. The fees are very complicated for Trustees, and the best explanation on this issue is at the following link https://pollockfirm.com/calculating-nj-trustee-commissions/ (we are not affiliated with this law firm, we just believe this is as good an explanation as can be given).
What can I do if I believe there is an issue with a Will or Trust?
Some concerns that our clients have come across are:
- the belief that the Will or Trust was signed under duress or improper influence
- the belief that the Will or Trust is invalid because it was signed improperly or not signed by the decedent
- it is not the last or correct Will of the decedent
You as a potential heir or interested party have the right to bring the issue before a Judge and have the Judge determine if the Will or Trust was the product of duress or undue influence, and also to have the Court determine if a Will or Trust was properly executed or is actually the Last Will and Testament of the deceased person. Our firm frequently handles such cases before the Probate Court, and examples of the lawsuits we have filed and defended may be provided if you request.
Who pays the legal fees if I raise a reasonable concern about the validity of a Will, but the Court enforces the Will anyway?
As long as you have a good faith reasonable belief the will is invalid, or is the product of duress or undue influence, or is the wrong will, the Court has the discretion to make the Estate pay your attorney’s fees even if you do not end up being the beneficiary. Richard M. King Jr. was the trial and appellate attorney in one of the lead cases on this issue, In re Macool, 416 N.J. Super. 298 (App. Div. 2010). The Trial Court, in that case, awarded the unsuccessful challenger only 85% of her fees, but Richard reversed the Trial Court on the issue of fees, and the client was ultimately awarded 100% of her fees because her claim was reasonable and the fees charged were reasonable. This case is often relied upon by other attorneys and judges for this proposition. It is the very first case cited on this issue in the Court Rules on this topic.
Can I object to or remove someone as the Executor / Executrix of the estate, or at least make them tell me what is going on and what is in the Estate?
Yes. A Fiduciary (Executor, Executrix, Trustee, etc.) is obligated to administer the estate “as expeditiously and efficiently as is consistent with the best interests of the estate” N.J.S.A. 3B:10-23. There is a statute that permits you to remove a Fiduciary under certain circumstances including neglect, embezzlement, and failure to perform his or her duties. N.J.S.A. 3B:14-21 (incorporated by reference in the Uniform Trust Code N.J.S.A. 3B:31-51). The Fiduciary must respond to reasonable requests for information, and must ultimately “account” for all activities as a fiduciary. Court Rule 4:87-1. Our firm works to obtain that information from fiduciaries voluntarily, but if that cannot be accomplished, we will go to Court to either compel the fiduciary to provide the information or have the fiduciary removed.
What is undue influence?
To prove undue influence you do not need direct evidence that the Decedent was scared or intimidated. The influence is often more subtle, and the circumstances are very important. It also is not necessary that the person be incompetent or incapacitated. Vulnerable people can do things they would not otherwise do simply because they are dependent on someone for their finances or basic needs, and this can be true even if the person is mentally competent or is still very “smart”. Therefore, to protect the vulnerable, the law sometimes requires the beneficiary to show he or she did not unduly influence the Decedent.
However, people also have the right to decide who to include in or exclude from their Will or Trust, and they are also entitled to favor the people upon whom they rely for help when they are sick or vulnerable.
Our firm has made claims of undue influence for disappointed beneficiaries and has defended Estates from claims of undue influence. The law is generally as follows:
“It is well settled in this State that every citizen of full age and sound mind has the right to make such disposition of property by will or deed as he or she in the exercise of individual judgment may deem fit.” Casternovia v. Casternovia, 82 N.J. Super. 251, 257 (App. Div.1964).
Therefore, the Court must respect the competent testator’s intent unless there is a finding of “undue influence”. “[U]ndue influence is a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer….” In re Estate of Stockdale, 196 N.J. 275 (2008). The burden of establishing undue influence rests with the party contesting the will. Id. at 303. However, “[w]hen there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption.” Ibid. That burden can be overcome based on proof of no undue influence by a preponderance of the evidence. Ibid.
“What constitutes undue influence so as to invalidate a will cannot be precisely defined, but each case must be judged according to the attending facts and circumstances.” In re Nixon’s Will, 136 N.J. Eq. 242 (1945). The principal factors that the Court takes into consideration when determining if undue influence was exercised are independent counsel, Matter of Will of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992), isolation, In re Estate of Folcher, 224 N.J. 496, 501 (2016), whether the decedent had testamentary capacity. In re Prob. of Alleged Will of Landsman, 319 N.J. Super. 252, 267 (App. Div. 1999) and if there is a sudden change in the manner of disposition without explanation. Matter of Will of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992)
We will help you develop the facts that support your belief that undue influence did or did not affect the Decedent’s estate plan.
What does “incompetent” or “incapacity” mean when it relates to a Will or Trust?
The threshold for testamentary capacity is a low one. A person can have the capacity to make a Will even if they do not understand complex legal or business matters, or even if they sometimes are forgetful or confused. This is particularly true if they had an attorney draft their will who can attest they knew their assets and the “objects of their bounty” (the people to whom they want to give a gift) at the time they signed the Will.
There is a legal presumption that “the testator was of sound mind and competent when he executed the will.” Haynes v. First Nat’l State Bank of N.J., 87 N.J. 163, 175–76, 432 A.2d 890 (1981) (quoting Gellert v. Livingston, supra, 5 N.J. at 71, 73 A.2d 916); In re Hoover, supra, 21 N.J.Super. at 325, 91 A.2d 155.
The gauge of testamentary capacity is “whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will.” Gellert v. Livingston, supra, 5 N.J. at 73, 73 A.2d 916; see 5 Alfred C. Clapp, New Jersey Practice—Wills and Administration § 36 at 150–56 (1982). Testamentary capacity is to be tested at the date of the execution of the will. Gellert v. Livingston, supra, 5 N.J. at 76, 73 A.2d 916. Furthermore, “[a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will.” In re Rasnick, 77 N.J.Super. 380, 394, 186 A.2d 527 (Cty.Ct.1962); see Loveridge v. Brown, 98 N.J.Eq. 381, 387, 129 A. 131 (E. & A. 1925); 5 Clapp, supra, § 36 at 153. “[T]he burden of establishing a lack of testamentary capacity is upon the one who challenges its existence [and] [t]hat burden must be sustained by clear and convincing evidence.” In re Hoover, supra, 21 N.J.Super. at 325, 91 A.2d 155; accord In re Rasnick, supra, 77 N.J.Super. at 395, 186 A.2d 527. A testator’s misconception of the exact nature or value of his assets will not invalidate a will where there is no evidence of incapacity. See In re Livingston’s Will, 37 A. 770, 772 (Prerog.1897); McCoon v. Allen, 45 N.J.Eq. 708, 719, 17 A. 820 (Prerog.Ct.1889); Collins v. Osborn, 34 N.J.Eq. 511, 520 (Prerog.Ct.1881); 5 Clapp, supra, § 36 at 151 n. 8. “Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity.” 79 Am.Jur.2d Wills § 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. “[I]t is not ignorance of the kind or amount of property owned by the **269 testatrix which invalidates [a] will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property.” In re Livingston’s Will, supra, 37 A. at 772.
Matter of Will of Liebl, 260 N.J. Super. 519, 524–25 (App. Div. 1992)
What can I do if someone’s name was put on a Bank Account and now claims to own it?
Bank and other accounts can be placed in joint names, and when one owner dies the other account holder claims to own all of the money. Under the Multi-Party Deposit Act, during the lifetime of all parties, a joint account belongs to the parties “in proportion to the net contributions by each to the sums on deposit,” unless the terms of the contract indicate a contrary intent or there is clear and convincing evidence of a different intent at the time the account was created. N.J.S.A. 17:16I–4(a). However, when a party to a joint account dies, there is a rebuttable presumption that a right of survivorship was created. N.J.S.A. 17:16I–5(a) provides “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.” As noted, the statutory presumption is rebuttable, and may be overcome with evidence showing that undue influence was used *268 in the creation of the joint accounts, or that the accounts were solely for the convenience of the depositor. See Sadofski v. Williams, 60 N.J. 385, 290 A.2d 143 (1972) (holding that the accounts had been created for convenience purposes, to enable decedent’s daughter to help manage her financial affairs, and that there was no intent to create survivorship rights); In re Estate of Penna, 322 N.J.Super. 417, 428– 29, 731 A.2d 95 (App.Div.1999) (finding no intent to create survivorship rights when one of the children handled financial transactions for the decedent, who had been living in another state, and decedent had shown “evenhanded” treatment of her children both during her life and in her Will); Bronson v. Bronson, 218 N.J.Super. 389, 394, 527 A.2d 943 (App.Div.1987) ( “[J]oint accounts are also sometimes used as ‘convenience accounts,’ so that another party may more easily handle the financial affairs of the true owner of the [account].”). These can be very fact sensitive cases, and we will help you find the proofs necessary to prove the intentions of the decedent.
My siblings and I inherited property together, and we are interested in Partition?
It can be challenging when many people come to own the same piece of property. Every owner has the right to occupy the property, and each is responsible for their fair share, but things never seem to go that smoothly. If there is dispute about owning or using the property, a partition action may be the solution. In a partition, the owners ask the court to break up the ownership and either sell the property or have certain parties buy out the other parties. 2A:56-1 et seq. https://law.justia.com/codes/new-jersey/2009/title-2a/2a-56/2a-56-2/ The court, under most circumstances, will choose the course that provides the greatest value to all of the owners. Of course, there is often more than money at stake, and there are equitable factors as well. . There also may be disputes regarding the parties’ relative responsibility for past expenses and use of the property. Baker v. Drabik, 224 N.J. Super. 603 (1988); Esteves v. Esteves, 341 N.J. Super. 197 (App. Div. 2001). These complex cases require strong and nuanced advocacy, and we have the experience and creativity to handle such matters.