The decedent’s daughter-in-law and grandchildren filed an action seeking to set aside the decedent’s 2016 will that disinherited them, and to admit a prior will and codicil. They claimed that the decedent lacked testamentary capacity to make the 2016 will, and that the decedent’s daughter had exercised undue influence to cause the decedent to disinherit the plaintiffs.

The trial court entered a case management order that included discovery. However, before the defendants provided any discovery, the defendants (the Estate and daughter) filed a motion to dismiss, supported by the certifications of the daughter as well as the scrivener of the will. The plaintiffs opposed the motion, noting that they had not received the decedent’s medical records or any other discovery. Nevertheless, the trial court granted the motion and dismissed the complaint.

On appeal, the Appellate Division agreed with the plaintiffs that the case had been dismissed prematurely. Although recognizing that the trial court might have concluded that the plaintiffs’ case was “weak,” and that the court might have been concerned that legal fees would drain the estate, the appeals court noted that the court could have carefully managed, and limited, discovery before deciding a motion to dismiss.

The dismissal was reversed, and the case was remanded to the trial court.

The case is attached here – Estate of Josephine MacDonald

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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 time with his wife, Marion, and his three children, Julianne, Evan and Alex.