I compiled my selections for the top ten (10) New Jersey estate and probate litigation / will contest cases in 2010. For those cases I previously blogged about, a link to the blog post as well as the case is included below.
(1) Matter of the Estate of Jewell B. Sykes, Docket No. A-1109-09T2 (App. Div., Aug. 19, 2010): Family Ties Do Not Create A “Confidential Relationship” Sufficient To Invalidate A Will Based On Undue Influence
In Sykes, the decedent’s daughter/co-executor (“Evelyn”) challenged the validity of two leases her mother had entered into with a company that was owned by the decedent’s son/co-executor (“Gerald”). Gerald lived with the mother from 1976 until she entered a nursing home in 1992; he also qualified as a “caregiver child” for at least two years prior to her institutionalization. After losing at the trial level, Evelyn argued on appeal that there was adequate proof of a “confidential relationship” between the decedent and Gerald “by virtue of the ‘natural relationship between mother and son living together, with [the] son caring for [the] mother and managing her financial affairs.’” The appellate court affirmed the trial court, holding that “the mere existence of family ties does not create … a confidential relationship… since the record is devoid of evidence that Gerald occupied a position of dominance over [the mother]… .”
(2) In re Macool, 2010 WL 3608686, ___ N.J. Super. ___ (App. Div. 2010): A Draft Will That Was Not Reviewed By The Client Before Death Cannot Be Admitted To Probate
The Appellate Division in In re Macool concluded that, for a writing to be admitted as a will under N.J.S.A. 3B:3-3, the proponent must establish by clear and convincing evidence that (1) the decedent actually reviewed the document in question and (2) thereafter gave his or her final assent to it. However, the writing need not be signed by the testator.
(3) In Re Buscavage, Docket No. A-6041-08AT3 (App. Div., Aug. 25, 2010): The “Mere Possibility” Of An Attorney Conflict Of Interest May Be Sufficient To Establish An Ethical Breach
In this challenge to trust amendments made by the decedent favoring defendant, the decedent’s attorney had previously represented the defendant in her capacity as co-executor in the sale of a home, and represented her daughter in the purchase and sale of her home. The plaintiffs alleged that this prior relationship was a conflict of interest and impaired the attorney’s ability to independently represent the decedent. The lower court found in favor of the defendant. On appeal, the Appellate Division reversed and remanded the case, holding that “a conflict of interest … need not be obvious or actual to create an ethical impropriety. The mere possibility of such a conflict at the outset of the relationship is sufficient to establish an ethical breach on the part of the attorney… .”
(4) Estate of Ruszala v. Brookdale Living Communities, Inc., Docket No. A-4403-08T1 (App. Div., Aug. 10, 2010): Arbitration Agreements In Nursing Home Contracts Are Enforceable, But Some Provisions Are Voidable For “Substantive Unconscionability”
The Appellate Division addressed the Federal Arbitration Act (“FAA”) and its impact on New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (“Residents’ Rights Act”). The Court first held that the FAA preempts New Jersey’s Residents’ Rights Act’s ban on “[a]ny provision or clause waiving or limiting the right to sue … between a patient and a nursing home.”
However, the Ruszala court affirmed the lower court’s finding that some of the arbitration agreement provisions were unenforceable, based on the doctrine of substantive unconscionability. In particular, the provisions limiting discovery, limiting compensation for non-economic damages, and precluding punitive damages, were found to be substantively unconscionable, and were stricken from the arbitration agreement.
(5) Rossius v. Krasheninnikoff, Docket No. A-4220-08T3 (App. Div., Jan. 27, 2010): Awarding Attorneys Fees To The Wrongdoer In An Undue Influence Case Is “Abuse Of Discretion”
In Rossius v. Krasheninnikoff, the court found, after a trial, that the defendant had unduly influenced the decedent to make him the sole beneficiary named in the decedent’s will. The court awarded the entire estate to plaintiff. However, the trial court also granted defendant’s counsel application for fees.
The appellate court reversed, holding that it was an abuse of discretion for the trial court to award attorneys fees to defendant: “where the wrongful conduct of one party triggers otherwise unnecessary litigation, no allowance of counsel fees will be made to the wrongdoer. In fact, in some circumstances, counsel fees for the innocent prevailing party may be charged against that individual.”
(6) Matter of Sand, Docket No. A-1856-08T1 (App. Div., November 1, 2010): Failure To Treat Children Equally Is Insufficient Grounds To Set Aside A Will For Lack Of Capacity Or Undue Influence
In Matter of Sand, the decedent, Lucille Sand, executed a will and codicil in which she bequeathed the sum of $25,000 to her daughter, Sandra Singer, while leaving the balance of her $2 million estate in equal shares to Sandra’s three sisters, Thea, Paula, and Candice. Thea and Paula were named as co-executors. The co-executors moved to admit the will and codicil to probate. Sandra objected, contending that the alleged will and codicil were “against everything the decedent said she stood for” and consequently “[o]nly a person lacking testamentary capacity” or subjected to undue influence or fraud could have left a will in which Sandra was bequeathed only $25,000 of a $2 million estate.
Thereafter, the co-executors moved for summary judgment, which was granted. Sandra appealed. The appellate court affirmed. The appellate court found that the trial judge properly concluded that Sandra’s claim of undue influence rested on nothing more than the disparate treatment of herself and her sisters, which was insufficient.
(7) In the Matter of the Estate of Ronald M. Denner, Docket No. 0 – 3474 (Chan. Div., February 28, 2006): NJ Court Holds That Documents, Though Unsigned, Undated, And Neither Witnessed Nor Notarized, May, Nevertheless, Be Admitted To Probate As A Valid Last Will And Testament
The decedent, Ronald M. Denner, died in 2005. Decedent’s 1989 will, which was properly signed, dated, witnessed, notarized and met all of the other statutory requirements, was admitted to probate. Thereafter, plaintiff presented three documents to the Court which she asserted should have been admitted to probate in lieu of the 1989 will. All three documents were unsigned, undated, and neither witnessed nor notarized. In response, defendant filed a motion to dismiss plaintiff’s application for failure to state a claim because none of the documents offered by plaintiff as the decedent’s will were signed by the decedent.
After reviewing the law, the Court denied defendant’s motion and permitted plaintiff’s case to proceed to trial. The Court held that the failure to sign a document purporting to be a will is not a per se bar to its admission to probate. Under N.J.S. 3B:3-3, even the failure to execute a will can be overcome if the proponent of the purported will establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s will. Therefore, the Court ruled, the proponent of the will in this case should be given the opportunity to establish her case through discovery and trial rather than dismissing it on motion.
(8) Kay v. Kay, 405 N.J. Super 278 (App. Div. 2009), aff’d, ____ N.J. ___ (2010): NJ Supreme Court Holds That The Estate Of A Deceased Spouse May Assert Equitable Claims Against Surviving Spouse
Hildegard and George Kay were married in 1973. It was a second marriage for both parties. Although no children were born of the marriage, each party had children from the prior marriage. In 2006, when she was 70 years old, Mrs. Kay filed a complaint for divorce. At that time, Mr. Kay was 83 years old.
In 2007, the court entered an order prohibiting the dissipation of marital assets. Thereafter, Mr. Kay claimed that his wife diverted marital assets into her sole name. But before the divorce action and the claims of the diversion of assets could be tried, Mr. Kay died.
Mr. Kay’s will left his estate to family members other than his wife. However, after Mr. Kay died Mrs. Kay dismissed the divorce action and transferred all joint assets she owned with her deceased husband into her sole name. After the transfer, Mr. Kay’s estate did not own sufficient assets to cover his burial expenses and attorney’s fees. As a result, the executor of Mr. Kay’s estate sought to file equitable claims seeking the imposition of a constructive trust to prevent the unjust enrichment that would occur if Mrs. Kay retained marital property belonging to Mr. Kay at the time of his death.
The trial court denied the estate leave to file equitable claims against Mrs. Kay, and dismissed the divorce action. The court held that the estate of a decedent spouse is not entitled to assert equitable claims against the surviving spouse based upon settled law. The estate appealed. The Appellate Division concluded that the trial court should have allowed the estate to assert claims against the surviving spouse and considered whether the equities arising from the facts alleged called for relief in favor of the estate.
The surviving spouse’s petition for certification to the N.J. Supreme Court was granted. The Supreme Court held that a trial court may not refuse to consider equitable claims raised by the estate of a deceased spouse who, during the divorce litigation, was attempting to pursue a claim that the surviving spouse had diverted marital assets. The Court held that, since the deceased spouse himself was, before he died, attempting to pursue claims that marital assets had been wrongfully diverted by the surviving spouse to the detriment of the deceased spouse, the estate’s attempt to continue the claims raised before death should not be extinguished.
(9) In the Matter of the Estate of Francis Marie Ackerson Yetter, Deceased, Docket No. A-0971-09T3 (App. Div., December 22, 2010)
Plaintiffs, who are the great-grandchildren of the decedent born after the Will was executed, asserted that they were entitled to share in equal parts with decedent’s great-grandchildren identified in the decedent’s Will. All of the beneficiaries agreed that the decedent never would have intended to exclude two of her great-grandchildren. Plaintiffs filed an Order to Show Cause seeking an order confirming that the distribution to the four great-grandchildren be treated as a class gift so that there were equal distributions to all under the Will. The trial court denied the application, holding that the language in the instrument was “precise” and “pretty straightforward,” sufficiently so as to warrant no further inquiry into the probable intent behind the instrument. Plaintiffs appealed. The appeals court held that relied the trial court relied unduly on the literal language of the Will and failed to give adequate consideration to the rule of probable intent.
(10) In The Matter Of The Estate Of Pasquale Suraci, Deceased, Docket No. BER – P – 284 – 09 (Chan. Div., August 9, 2010): Court Finds Joint Account Does Not Pass To Surviving Owner, But Passes Under Decedent’s Will
The dispute in this case involved conflicting claims of ownership of approx. $100,000 in a TD Ameritrade investment account. The account was owned by Pasquale Suraci (the “decedent”) and his daughter, Flora, as joint tenants with rights of survivorship. Plaintiffs, decedent’s grandchildren, asked the court to treat the account as part of decedent’s probate estate and order that the account be distributed in accordance with the decedent’s will. Flora, on the other hand, claimed that she became the sole owner of the account as a matter of law under New Jersey’s Multiple-Party Deposit Account Act (the “Act”), which provides that the contents of a joint account shall pass to the surviving joint owner upon the death of one of joint owners “unless there is clear and convincing evidence of a difference intention at the time the account is created … .” Upon the parties’ joint motions for summary judgment, the trial court concluded that the Act does not govern securities and brokerage accounts such as the TD Ameritrade investment account owned by the decedent at the time of his death. Accordingly, the court denied Flora’s motion for summary judgment. The court then analyzed plaintiffs’ claims of undue influence and similar claims and determined that they were all “fact sensitive” determinations, contested by defendant, which could not properly be decided in a summary manner. As a result, plaintiffs’ motion for partial summary judgment was also denied.
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