Gifts made by an agent under a Power of Attorney may be challenged by the beneficiaries of the decedent's estate

Financial exploitation of the elderly by an agent under a power of attorney is common

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 in which the majority of the decedent’s estate was left to her daughter (one of the decedent’s grandchildren). The estranged wife also claimed that, prior to the decedent’s death, one of his children had depleted the estate by misappropriating the decedent’s funds as power of attorney.

Following a hearing, the trial judge found the estranged wife’s testimony contradictory and unpersuasive.

With respect to her claim that the decedent’s child, as power of attorney, had improperly disbursed the estate’s assets while the decedent was alive, the judge found that those pre-death distributions included distributions of $10,000 each to the agent herself and to her siblings. The trial judge concluded that those distributions, “while not in accordance with convention,” were “not done for any illegal or devious purpose” and were “not fraudulent.”

The trial court also found that the estranged wife’s attempt to probate the 2005 will was time-barred by R. 4:85-1.

Finally, the trial court awarded the administrator counsel fees based on the estranged wife’s “dogged pursuit” of one of her “clearly frivolous” claims.

The Appellate Division affirmed in all respects the decision of the trial court, noting the deference given to a trial court that has the opportunity to assess the credibility of the witnesses. In affirming the legal fee award, the appeals court noted that fees for frivolous litigation are reviewable based on an “abuse of discretion” standard.

A copy of In re Zirkle can be found here – In re Zirkle

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