After Voluntarily Dismissing Caveat, Plaintiff’s Law Division Lawsuit Was Properly Dismissed

Shortly after their father’s death, plaintiff (one of the decedent’s sons) filed a caveat against the estate, based on allegations of undue influence and payments made to his siblings prior to their father’s death. After his brother filed a complaint in the Superior Court, Probate Part to admit the father’s will to probate, plaintiff voluntarily withdrew the caveat. Plaintiff did not seek other relief in the Probate Part during the four month time period permitted under R. 4:85-1. The will was admitted to probate.

Months later, plaintiff filed an action in the Superior Court, Law Division against his siblings and their father’s estate. He claimed that, in his father’s final days, he and his siblings provided services to their father; unbeknownst to him, his siblings were compensated for their services, but he was not. The suit included claims of quantum meruit, fraud, waste, and tortious interference with inheritance. After discovery, the siblings brought a summary judgment motion. The trial judge granted that motion, thus dismissing the plaintiff’s complaint. Plaintiff appealed.

The Appellate Division affirmed the dismissal. It concluded that the plaintiff had abandoned his claims against the estate when he withdrew his caveat, he was barred from bringing those claims in the Law Division.

With regard to the fraud claim, in which plaintiff claimed that his siblings surreptitiously obtained payment for caring for their father, the appeals court noted that the plaintiff chose not to pursue this claim in the Probate Part. It reasoned that, if the claim had been one for waste against the estate, it should have been pursued in the probate proceeding; if it had been a claim that the decedent owed plaintiff for his services, this would be a claim for quantum meruit, which plaintiff acknowledged was properly dismissed and not before the appeals court. With regard to the tortious interference with inheritance claim, the appropriate forum for that claim also would have been the Probate Part.

The summary judgment dismissal was affirmed.

 A copy of Estate of Smith can be found here – Estate of Smith

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Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career. Recently, Don was selected by the New Jersey Law Journal as a Top Rated New Jersey Lawyer in 2019.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don was lead counsel representing the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004), in which the New Jersey Supreme Court, for the first time, permitted guardians to engage in public benefits planning to obtain Medicaid eligibility for their wards. Don also represented the plaintiff in a pivotal case entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014) in which the New Jersey Supreme Court, for the first time, permitted a special needs trust to be designated as the beneficiary of a state pension. Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.