An appeals court in Maryland has upheld the criminal conviction of a daughter who withdrew funds from a joint account with her father, holding that her father did not intend to make a gift when he put his daughter’s name on his bank account. Wagner v. State of Maryland. Marion Wagner was 84 years old,.. read more →
Contrary to popular opinion, under the law of Pennsylvania, New Jersey and other states, an unlimited gifting authority in a power of attorney does not protect the agent from criminal liability for self-dealing. A recent appeals court decision in Pennsylvania demonstrates this legal principal. Commonwealth of Pennsylvania v. Patton David L. Patton was arrested in.. read more →
Following the decedent’s death, one of his three children applied for summary administration of the estate pursuant to N.J.S.A. 3B:10-4, which governs intestate estates that do not exceed $10,000. More than two years later, the estranged wife of one of the decedent’s children filed an action for probate, claiming that there was a 2005 will.. read more →
In In re Estate of DeFrank, 433 N.J. Super. 258 (App. Div. Nov. 15, 2013), a New Jersey appeals court reversed a trial court’s summary judgment dismissal of a case involving ownership of joint bank accounts. The Appellate Division reasoned that ownership turned on the intent of the decedent and the relationship of the parties,.. read more →
In Estate of William Strohmenger, 2013 N.J. Super. Unpub. LEXIS 2651 (App. Div. Oct. 31, 2013), the decedent left a handwritten will leaving his estate to his minor son, in trust, and nothing to his estranged wife. After his sister sought to admit the holographic will to probate, the estranged wife filed a caveat objecting.. read more →
In re Estate of Klausner, 2014 N.J. Super. Unpub. LEXIS 1517 (App. Div. June 23, 2014) involved Gerald Klausner, who was appointed executor of his late uncle’s estate, and Gerald’s brother Ronald, who was one of the beneficiaries of the estate. Following his appointment as executor, Gerald discovered transactions that he believed demonstrated that Ronald.. read more →
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 →
In general, an incapacitated person is to be represented in any litigation by a guardian, or “if no such guardian has been appointed or a conflict of interest exists between a guardian and ward or for other good cause, by a guardian ad litem appointed by the Court.” R. 4:26-2(a); Village Apartments v. Novack, 383.. read more →
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 →
In an August 29, 2013 unpublished decision, the Appellate Division considered and affirmed the trial court’s denial of a nursing home’s motion to dismiss a personal injury and wrongful death claim brought by the estate of a former resident. Levonas v. Regency Heritage Nursing and Rehabilitation Center (Docket No. A-4995-11T4, Aug. 29, 2013). In Levonas, the.. read more →
Justice Laura L. Jacobson, a New York trial judge, held that a trustee of a special needs trust breached its fiduciary duty to the trust beneficiary and ordered reimbursement of nearly $180,000 that was misspent on private caregivers, cab rides, and medications that could have been obtained from needs-based government sources. Liranzo v. LI Jewish.. read more →
Renee Halpecka died in 2005 when she was 84 years old. Before her death, Renee had been very ill for many years and was cared for by her husband. After her husband died in 2001, Rosemary Walsh, a neighbor, became Renee’s caretaker and served as her agent under a financial power of attorney and medical.. read more →
What is Probate? “Probate” is the name of the process which permits an Executor to transfer assets as directed by a deceased person, or decedent, in his or her Last Will and Testament to recipients, or beneficiaries, according to the terms of the Will. The deceased person who made the Will is called the “testator.”.. read more →
After an individual’s death, litigation regarding the decedent’s estate can arise in a variety of contexts. A common claim asserted in a lawsuit challenging the validity of a decedent’s Last Will and Testament is that the will was the result of “Undue Influence.” “Undue Influence” is defined by our courts as “’mental, moral or physical’.. read more →
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 →
In a contested guardianship, the guardianship applicant often wishes to pursue additional claims involving the validity of a Last Will and Testament or other estate documents purportedly executed by the alleged incapacitated person at or before the time the guardianship action was filed. In such cases, plaintiffs often claim that the Last Will and Testament.. read more →
When a party believes that the decedent’s estate was depleted prior to his or her death as a result of gifts allegedly made by the decedent, an improvident gift claim may be asserted. In contrast to testamentary dispositions, in which both a confidential relationship and suspicious circumstances are required to raise a presumption of undue.. read more →
Earlier this month, Hon. Robert P. Contillo, Presiding Judge of the Chancery Division, Bergen County, New Jersey, set aside a decedent’s Last Will and Testament, ruling that the Will was the result of undue influence by one of her adult children who was the principal beneficiary of the will. In doing so, Judge Contillo made.. read more →
In Estate of Mendonca v. DaSilva, Docket No. A3515-11T2 (App. Div. Feb. 22, 2013), the decedent, Ricardo Mendonca died intestate as a result of an automobile accident. His only heir was his minor son, who lived with his mother in Brazil. Unbeknownst to the minor child’s mother, the decedent’s other family members had filed a.. read more →
In Stephenson, Personal Representative of Estate of Murry v. Spiegle, Docket No. A-4193-11T2 (App.Div., January 31, 2013), the decedent executed a Last Will and Testament leaving his estate to family members or trusts for family members. The will was prepared by his attorney, William E. Spiegle, III, Esq. Less than two months later, the decedent.. read more →
In a November 5, 2010 blog post, I discussed the Superior Court of New Jersey, Appellate Division decision in Matter of Sand, Docket No. A-1856-08T1 (App. Div., November 1, 2010). In that case, the appellate court affirmed the trial court’s ruling that the decedent’s daughter’s attempt to set aside her mother’s will, claiming undue influence.. read more →
In my January 20 blog post, I discussed the time limits imposed under R. 4:85-1 of the New Jersey Court Rules for filing challenges to the probate of a will. In an Appellate Division case decided on January 18, 2013, the effect of an administrator’s fraud on those time limits was addressed, in Matter of.. read more →
Below, courtesy of the ElderLawAnswers website, is the annual roundup of the top 12 elder law decisions decided by federal and state courts in 2012. The cases were selected based upon readership as measured by the number of readers who “clicked through” to the full story in the website’s Weekly and Monthly e-letters. Links in.. read more →
A challenge to a will (as opposed to, for example, (1) a challenge to non-probate designations; (2) a challenge to pre-death transfers by a power of attorney; or (3) a challenge to the actions of an executor following probate of a will) may be initiated two ways. First, by way of a caveat; second, by.. read more →
(The 15th Annual Elder and Disability Law Symposium was held on October 3, 2012 at the New Jersey Law Center, in New Brunswick, NJ. This year, as in the past few years, I gave the case law update at the opening plenary session by summarizing the top ten (10) or so elder and disability law.. read more →
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