09 Apr 2017
April 9, 2017

Son Who Unduly Influenced Mother Could Be Appointed As Her Guardian; Evidence Did Not Support Court’s Change Of Beneficiary Designation On TOD Account; Counsel Fees Denied Because Litigation Was A “Fight Between Brothers”

Abuse of Power of Attorney, Attorneys Fees, Elder Law, Estate Litigation, Guardianship, Lack of Testamentary Capacity, Legal Capacity or Competancy, New Cases, Undue Influence, Will Contests 0 Comment

In 1997, Evelyn Worley’s son Dwight assisted her in opening a $100,000 Transfer On Death (“TOD”) account where he worked. Dwight was designated as the sole beneficiary of the account. In 2005, Evelyn signed a power of attorney (“POA”) naming Dwight as her agent. In 2008, she signed a will naming Dwight as her executor.. read more →

27 Feb 2017
February 27, 2017

Summary Judgment Appropriate in Probate Lawsuit Involving Allegations of Incompetency and Undue Influence

Elder Law, Estate Litigation, Lack of Testamentary Capacity, Last Will and Testament, Legal Capacity or Competancy, Litigation, New Cases, Summary Judgment, Undue Influence, Will Contests 0 Comment

The Appellate Division affirmed a summary judgment ruling by a trial court in a probate lawsuit involving disputed issues of material fact relating to alleged incapacity and undue influence. In the Matter of the Estate of Tornaben, New Jersey Superior Court, App. Div., Docket No. A-5181-14T4 (Sept. 27, 2016). The Essex County Surrogate admitted the.. read more →

18 Jul 2016
July 18, 2016

Appellate Court Affirms Admission of Will to Probate, Rejecting Lack of Capacity and Undue Influence Claims

Breach of Fiduciary Duty, Elder Law, Estate Litigation, Estate Planning, Financial Exploitation of the Elderly, Lack of Testamentary Capacity, Last Will and Testament, New Cases, Undue Influence, Will Contests 0 Comment

When Helen Weste died in 2010, she was divorced with no children. In 1994, she had executed a will leaving her estate to charities and nieces and nephews. In 2001, Helen’s health began to fail. In April 2002, family members contacted her ex-husband (who was agent under her power of attorney), and he flew in.. read more →

04 Feb 2016
February 4, 2016

Appellate Division Affirms Trial Court’s Refusal To Set Aside Deeds Executed By Decedent

Estate Litigation, Improvident Gifts, Lack of Testamentary Capacity, New Cases, Undue Influence, Will Contests 0 Comment

In 1997, the decedent, Kathleen Boyer, executed a Last Will and Testament and a revocable trust. In the will, she directed that her residuary estate “pour over” into the revocable trust upon her death. She named herself as trustee of the revocable trust and, although she retained complete control of the trust assets during her.. read more →

12 Jun 2014
June 12, 2014

Substantial Attorneys Fee Award Upheld In Will Contest Alleging Undue Influence

Attorneys Fees, Breach of Fiduciary Duty, Estate Litigation, Estate Planning, Financial Exploitation of the Elderly, Lack of Testamentary Capacity, Last Will and Testament, New Cases, Undue Influence, Will Contests 0 Comment

A New Jersey appeals court upheld a substantial fee award exceeding the amount in controversy for work preformed by law firm in a probate litigation when representing the estate of a man manipulated into modifying his will through undue influence because the wrongdoer’s actions contributed to, and greatly increased, the time and effort required to.. read more →

19 May 2014
May 19, 2014

Determining Capacity in Seniors and the Disabled through “Observational” Assessment

Elder Law, Evaluations, Guardianship, Health Issues, Lack of Testamentary Capacity, Legal Rights of the Disabled, Standards for a Prima Facie case of Incapacity, Standards for Decision-Making 0 Comment

Decision-making capacity involves four (4) key abilities: the ability to understand information relevant to a decision, to retain the information relevant to the decision, to use the information relevant to the decision as part of the decision-making process and to communicate the decision once it is made. But since decision-making capacity involves mental abilities, how.. read more →

13 May 2013
May 13, 2013

Lack of Testamentary Capacity

Elder Abuse, Elder Law, Estate Litigation, Lack of Testamentary Capacity, Litigation 0 Comment

After an individual’s death, litigation regarding the decedent’s estate can arise in a variety of contexts. A common claim asserted in an estate litigation is that the decedent lacked “testamentary capacity” (the capacity to make a will). An individual’s mental capacity is judged based upon the transaction or act that the person is undertaking. One.. read more →

27 Feb 2012
February 27, 2012

Undue Influence Claim Defeated Where Contestant Fails To Establish “Confidential Relationship,” But Fees Are Apportioned Based Upon Accounting Issues

Estate Litigation, Lack of Testamentary Capacity, Undue Influence, Will Contests 0 Comment

In September 2010, I blogged about the Matter of the Estate of Jewell B. Sykes case, in which the Appellate Division concluded that family ties, without more, do not create a “confidential relationship.” That blog post can be found here. In a February 16, 2012 decision in In the Matter of the Estate of John.. read more →

19 Jan 2012
January 19, 2012

Undue Influence Plaintiff Defeats Summary Judgment Despite Failure To Cite Facts In The Record To Oppose The Motion; But Certain Claims Are Dismissed For Failure To file An Affidavit Of Merit

Estate Litigation, Lack of Testamentary Capacity, Litigation, New Cases, Summary Judgment, Undue Influence 0 Comment

In the December 13, 2011 Estate of Sano Chancery Division case, the decedent’s wife had sued the decedent’s former employee (Ms. Chung) and that employee’s sister (Ms. Choi), claiming that they defrauded and unduly influenced the decedent to change a beneficiary designation of a $2.5 million life insurance policy. The policy had originally named the.. read more →

04 Dec 2011
December 4, 2011

Podcast of Guest Interview on The Caring Generation, An Internet Radio Show

Abuse of Power of Attorney, Elder Abuse, Elder Law, Health Issues, Improvident Gifts, Lack of Testamentary Capacity, Legal Rights of the Disabled, Medicaid, Personal Achievements and Awards, Social Media, Undue Influence, Web Sites and the Internet 0 Comment

  Several weeks ago, on Sunday, November 20th, I was a guest on The Caring Generation, a radio show airing on 630 KHOW-AM, a Talk Radio Station broadcasting from Denver, Colorado, and on the internet. The show is hosted by Pamela D. Wilson, who identified herself as the “Care Navigator.” The Caring Generation is about.. read more →

02 Jan 2011
January 2, 2011

Top Ten (10) New Jersey Probate Litigation / Will Contest Cases in 2010

Estate Administration, Estate Litigation, Lack of Testamentary Capacity, Removal of Fiduciary, Top Ten, Undue Influence, Will Contests 0 Comment

I compiled my selections for the top ten (10) New Jersey estate and probate litigation / will contest cases in 2010. For those cases I previously blogged about, a link to the blog post as well as the case is included below. (1)    Matter of the Estate of Jewell B. Sykes, Docket No. A-1109-09T2 (App… read more →

05 Nov 2010
November 5, 2010

Failure To Treat Children Equally Is Insufficient Grounds To Set Aside A Will For Lack Of Capacity Or Undue Influence

Estate Litigation, Lack of Testamentary Capacity, New Cases, Undue Influence, Will Contests 0 Comment

As an elder law attorney, I receive many inquires from potential clients asking me to evaluate a potential lawsuit against a sibling involving a deceased parent’s estate plan. The claim typically seeks to set aside a deceased parent’s will as invalid, the result of undue influence by a sibling. Typically, the potential client seeking a.. read more →

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