Judgment Invalidating Incompetent Person’s Last Will And Testament While He Was Still Alive Affirmed In Pre-Death Will Contest

Harry and Jean Sable were the parents of three adult sons, Michael, Don and Barry. Harry and two partners owned a building in Philadelphia where Harry conducted Harry Sable, Inc., a jewelry business.

Harry and Jean had wills prepared in 1994 and 1998 with similar provisions. Harry left his entire estate to Jean if she survived him. If she did not survive him, son Michael was to inherit their home and Harry’s interest in the Philadelphia building; Barry was to receive another property in Philadelphia; and Don was to inherit the inventory of Harry Sable, Inc. Stocks and bonds were to be divided equally among the three brothers. Harry also signed a financial power of attorney in 1999 naming Jean as his agent and Barry as successor to Jean. Harry and Jean signed health care POAs in 1999 in which Harry named Jean as his health care proxy and Michael as successor to Jean and Jean named Michael as her health care proxy.

Beginning in 1999, Harry became more confused and forgetful. In 2000, Harry was diagnosed with Alzheimer’s disease and placed on medication. By 2001, Harry was incoherent and unable to care for himself or run his business. At that time, Jean began handling the family finances until she suffered a severe stroke in 2002.

In 2003, Harry revoked his health care POA naming Michael, and signed a new health care POA naming Barry with no alternate. Harry also signed a new will which made no disposition for Jean, and left the entire estate to Barry. After Harry expressed some concern over the dispositions in the will, Harry signed another will in November 2003 which left Harry’s entire estate to Jean in trust if she survived him, and the remainder to Barry. The will also provided that, if Jean predeceased Harry, the estate was to be divided between Barry and Don, with Barry receiving seventy-five percent and Don the remaining twenty-five percent. There was no disposition for Michael. Harry signed the will, and executed another financial POA in favor of Barry.

In 2005, Michael filed a complaint seeking to have Harry declared incapacitated, to void POAs and any will executed by Harry in or after 2003 due to Harry’s incapacity and Barry’s undue influence, and for costs and attorney fees. Barry filed an answer and counterclaim asking to be named guardian of Harry’s person and property. The trial judge held a pretrial hearing and then ruled that Harry was incapacitated and appointed a temporary guardian for his person. Subsequently, the court appointed a permanent care manager for Harry after removing Barry as guardian over Harry’s property on grounds he had mismanaged accounts and used Harry’s assets for personal gain.

The case was tried over several days. Since there was no dispute that Harry was incapacitated, the central issue was whether he was incapacitated and lacked testamentary capacity when he executed the will and other documents in 2003.

In 2006 after testimony had concluded, the trial judge issued a final judgment holding that Harry lacked the mental capacity in 2003, and continually thereafter, and therefore that any and all documents executed by Harry in or after 2003 are null and void and of no legal force or effect whatsoever as a result of Harry’s incapacity. The court also found that Barry unduly influenced his father, substituting his will for his father’s, thereby rendering null and void any and all documents executed by Harry on or after 2003. The court ordered Barry to pay Harry’s estate $254,176 for costs unnecessarily expended on litigation involving Jean, as well as surcharges for money unaccounted for by defendant in the amount of $162,222.93. Attorney fees and costs were also awarded in the amount of $298,641.

Barry appealed, arguing that the trial court erred by improperly invalidating Harry’s 2003 will when he was still alive, that the court improperly assessed costs and attorney fees against him, among other alleged errors.

Regarding the order invalidating the will, the appellate court ruled that when a live testator is adjudicated incompetent as of a particular date, any documents executed subsequent to that date may be invalidated:

[T]he action was instituted to adjudicate Harry incompetent and to invalidate all the documents that he signed in … 2003. The same proofs were necessary to show incapacity to execute the POAs as would have been required to invalidate the will. There is no need for an additional trial to invalidate the will since the same result would be reached given the court’s determination that Harry was mentally incapacitated as of … 2003.

Regarding the award of attorneys fees, the appeals court ruled that the award of counsel fees is discretionary with the court and will not be reversed “absent a demonstration of manifest abuse of discretion:”

[Barry] controlled Harry’s estate under the POA, and … he influenced Harry to change the estate plan to benefit himself. The rationale for the award of attorney fees [is] that the estate should be made whole when “undue influence results in the development or modification of estate documents that create or expand the fiduciary’s beneficial interest in the estate.” [citation omitted] This is exactly what occurred in the instant case. Under principles of law and public policy …, [the trial judge] properly awarded counsel fees and other related costs.

The case is annexed here – IN THE MATTER OF HARRY SABLE

(I originally discussed the Sable case in the context of pre-death will contests in a blog post I posted in 2013 which can be found here.)

For additional information concerning probate litigation and will contests, visit:

NJ Will Contests and Probate Litigation



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.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don represented the plaintiff in a pivotal special needs trust case decided by the New Jersey Supreme Court entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014). He also represented the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004). 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.