Wayne Lippincott’s widow Anne probated a will dated two days before his death in 2015. The couple had been married 28 years, and each had grown children from prior marriages. Wayne’s children and grandchildren challenged the will, claiming undue influence, lack of capacity, forgery, and failure to comply with the formalities of execution. They sought probate of his earlier will, executed in 2000.

At the end of an 11-day trial, the judge vacated probate of the 2015 will and admitted the 2000 will, which also favored Anne. The Chancery Court judge also ruled that each party would be responsible for its own attorney fees. Both sides appealed the denial of fees.

On appeal, the Appellate Division reviewed the 54-page written opinion of the Chancery Court judge, which detailed that, although Wayne had discussed making a new will with his attorney, nothing was ever finalized. Near the end of his life, Wayne’s business partner urged Anne to have Wayne execute a new will immediately, and the partner called Wayne’s lawyer, advised him of Wayne’s imminent death, and asked him to draft the new will. The lawyer emailed a new will that day, and Anne had Wayne sign it upon receipt. Wayne’s business partner and the partner’s wife witnessed the will.

The trial judge found that, by the time the new will was drafted, Wayne had lost the testamentary capacity to sign a new will. He also found that, although Wayne had discussed a new will with his lawyer, the will prepared was “solely what the lawyer believed Wayne intended.” He also found the will was not properly executed or witnessed.

Although he invalidated the 2015 will, the judge found that Anne’s actions were not badly motivated. She had acted at the urging of Wayne’s business partner, and she had not read the new will before Wayne signed it. She knew he had an older will, but she did not know the contents of that will either. Although the judge concluded that Wayne lacked testamentary capacity or intent, he found no evidence that Anne exerted undue influence or tried to take advantage of Wayne.

Nevertheless, the judge found the plaintiffs’ successful challenge of the new will was a hollow victory because, given the severely depleted estate, the old will would provide them with little, if any, inheritance in the end. Under the 2000 will, half of Wayne’s estate passed outright to Anne; the other half was left in trust for her, with what remained at her death passing to his children and Anne’s children equally. The judge found that, if a significant fee award was made, there was a “very real possibility” that the estate would be rendered insolvent.

Given the highly unusual facts in the case, the judge found that there was no cause to award counsel fees to the plaintiffs or to Anne. He found that the parties’ mistrust and suspicion of each other is a “hallmark of intra-family litigation,” and that no fee award was appropriate.

The Appellate Division affirmed the lower court’s decision, adding that,

[the] decision honors Wayne’s intent to preserve assets for Anne, yet acknowledges her role in hastily procuring a will and having Wayne execute it at a point where his disease had robbed him of the capacity to understand it, as well as plaintiffs’ decision to pursue costly litigation in which the best they could hope for was a Pyrrhic victory.

 A copy of In re Estate of Lippincott can be found here –  In re Estate of Lippincott

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

NJ Will Contests and Probate Litigation

 

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ABOUT DONALD D. VANARELLI

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. Recently, Don was selected by the New Jersey Law Journal as a Top Rated New Jersey Lawyer in 2019.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don was lead counsel representing the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004), in which the New Jersey Supreme Court, for the first time, permitted guardians to engage in public benefits planning to obtain Medicaid eligibility for their wards. Don also represented the plaintiff in a pivotal case entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014) in which the New Jersey Supreme Court, for the first time, permitted a special needs trust to be designated as the beneficiary of a state pension. 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.