Love And Care Provided By Nephew Did Not Justify His Failure To Notify Any Beneficiaries Of The Existence Of Aunt’s Will

In 1998, Joan McFadden executed two powers of attorney (POAs) and a Living Will-Durable Health Care Power appointing John McFadden, her nephew, as her agent and attorney in fact, and Mary Sexton, her niece and John’s sister, as her alternative agent and attorney-in-fact. The two POAs stated that they would become effective upon the following conditions: (1) incapacity declared by a court of competent jurisdiction; (2) appointment of a conservator or guardian based upon incapacity; (3) certification of two licensed physicians that decedent was incapable of caring for herself and physically or mentally incapable of managing her financial affairs; or (4) upon executed certification of the decedent that the agent was fully authorized to act under the POAs. None of the conditions which would make the POAs effective ever occurred.

Soon thereafter, Joan executed a will. The will made five specific bequests to three charitable organizations and to two friends, and left the remainder of the estate in equal parts to Joan’s thirteen nieces and nephews. The will named John McFadden and Mary Sexton as co-executors of the estate. Mary later renounced her position as co-executor.

Joan was plagued with a myriad of medical issues. Nephew John assisted her with day-to-day tasks and even moved into her residence to provide her care. Joan eventually moved to an assisted living facility, where she remained until her death.

In October 2002, Joan passed away. Several months before Joan died, her lawyer prepared a deed transferring Joan’s home to her nephew John for one dollar of consideration. The deed was signed by John as decedent’s attorney-in-fact under her POA. In addition, decedent’s checking account showed cash withdrawals of $1200 per month beginning the year before her death. However, John testified he did not know who received the funds.

In May 2003, John McFadden submitted the decedent’s will for probate and was appointed the executor of decedent’s estate. John never notified the beneficiaries listed in decedent’s will that the will existed and had been probated.

Years later, in 2011, Joseph R. McFadden and Vincent J. McFadden (plaintiffs), two of decedent’s nephews who were among her will beneficiaries, became aware of decedent’s will. In 2012, plaintiffs filed a verified complaint alleging that John McFadden (defendant) improperly used estate funds for his own expenses.

Following trial in July 2015, the trial judge found that decedent “clearly lacked testamentary capacity to change her will during the years 2001 and 2002 and clearly lacked the comprehension required to make an informed decision to allow [defendant] to reimburse himself for all the expenses that he clearly helped himself to.”

Furthermore, the judge found defendant

[T]otally lacks believability, totally lacks credibility, but what is also obvious to me is that he has not even one ounce of remorse in his soul . . . for all the transgressions he has committed in his obvious quest to loot his aunt’s estate and to leave the cupboard bare for those nephews and nieces and other beneficiaries entitled to recover under the last will and testament of the decedent.

As a result, the court entered judgment in plaintiffs’ favor, ordering defendant to re-transfer decedent’s home to her estate, and to repay $422,576 to the estate. The judge also awarded counsel fees and costs totaling $126,875 to plaintiffs.

Defendant appealed. Defendant argued, among other things, that since decedent passed away in October 2002 and plaintiffs filed their complaint in 2012 – exceeding the six-year Statute of Limitations (SOL) – plaintiffs’ complaint was time-barred. He also asserted that allowing the case to proceed even though many years had passed since the will was probated was substantially unfair. In response, plaintiffs argued that the SOL only began to run in December 2011, when plaintiffs discovered the will.

The Superior Court of New Jersey, Appellate Division, affirmed the trial court’s judgment. The appeals court held that plaintiffs’ delay in filing their verified complaint was excusable since defendant did not act in good faith. Plaintiffs did not know they were beneficiaries of their aunt’s will nor did they have reason to know. Defendant did not follow the proper procedure when he failed to notify plaintiffs they were will beneficiaries.  In fact, defendant failed to notify any beneficiaries of the will’s existence.

The appeals court concluded as follows:

The [trial] judge took care to acknowledge that defendant cared for and must have loved his aunt. However, this love and care did not justify defendant’s actions.

The case is attached here – Matter of the Estate of McFadden

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