Probate Litigation - New Jersey Codicil Not Out (for Blood)

Pursuant to the New Jersey Wills Act, a will must be in writing, signed by the testator – or by some other person in his or her presence and at his or her direction – and signed by at least two witnesses to either (1) the signing of the will or (2) the testator’s acknowledgement of that signature or acknowledgement of the will.

In the alternative, pursuant to N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, a noncompliant document may suffice if the signature and material portions of the document are in the testator’s handwriting or if the proponent of the document can establish by clear and convincing evidence that the decedent intended the document to constitute his or her will.

 

In a recent, unpublished decision, the Superior Court of New Jersey, Appellate Division applied N.J.S.A. 3B:3-3 to a dispute concerning a holographic codicil to a will drafted by the scrivener/testator. In In the Matter of the Will of E. Warren Bradway, on the same day that his life partnership officially terminated, Bradway drafted a one-page codicil to his will which directed that all references to his ex-partner be replaced with the name of his new partner – in a bizarre twist, Bradway wrote the codicil using his own blood as ink!

 

Upon Bradway’s unexpected death, the estate filed an action in the Chancery Division, Probate Part to admit his will and codicil to probate. The decedent’s ex-partner soon filed an answer and counterclaim, contesting the validity of the holographic codicil. In May of 2017, a bench trial was conducted in which DNA and handwriting experts on behalf of each party opined as to the source of both the handwriting and blood on the document. Most importantly, both handwriting experts opined that the handwriting in the body of the codicil was the decedent’s handwriting and, although the DNA experts did not have a DNA sample from the decedent, they compared blood provided by the decedent’s two brothers and opined that the blood came from a full-sibling of the decedent’s brothers. At the conclusion of the contestant’s experts’ testimony, the estate moved for a directed verdict. In granting the estate’s motion, the trial court reasoned that, even without analyzing the signature on the codicil, the handwriting and content of the codicil clearly and convincingly established the decedent’s intent to alter his will. Thus, pursuant to N.J.S.A. 3B:3-3, the trial court entered an order of judgment admitting the will and codicil to probate.

 

On appeal, the Appellate Division analyzed N.J.S.A. 3B:3-2 and N.J.S.A. 3B:3-3, and, for purposes of the motion, similarly accepted the contestant’s position that the codicil was unsigned at the time of death. As a document or writing need not be signed by the testator to be recognized as a will or codicil under N.J.S.A. 3B:3-3, the question addressed was whether there was clear and convincing evidence that the decedent intended the codicil to alter his will. The Appellate Division agreed with the trial court that evidence of the decedent’s clear and convincing intent was established by the codicil itself; specifically, the codicil used language showing a clear intent to be a freely attested-to codicil, the codicil contained identifiers that clearly and convincingly established that the decedent intended to alter his will, and that the codicil was prepared using the scrivener’s own blood added support to the other clear and convincing evidence. Thus, the decision of the trial court was affirmed.

 

The drafting and execution of a will is extremely technical and should not be undertaken by a layperson without the assistance of a qualified estate planning attorney. Although numerous forms of fill-in-the-blank and do-it-yourself kits can be obtained with a few clicks of your mouse, you should never draft a will or codicil without proper assistance. Even if the document is admitted to probate, the scrivener has most likely created ambiguity or has failed to include any number of provisions which will have unintended and unexpected consequences on his or her estate. Additionally, any ambiguity in the document or, as in Bradway discussed above, any opportunity for dispute that is left open for a disgruntled party will most certainly lead to costly and protracted litigation. There are far too many problems that could arise if the document is not properly prepared and executed – the disposition of your estate is far too important to jeopardize by not seeking the assistance of a qualified attorney. In the event that you insist on preparing your own document, at the very least, please use ink!

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ABOUT PROBATE LITIGATION

Estate planning, administration, and litigation require particular knowledge. The Probate Litigation Practice Group at Windels Marx – offering a unique skill set with extensive experience in trusts and estates planning, probate litigation, and tax matters – represents parties in contested trust and estate matters in Probate Courts throughout the U.S. You may wish to consult with an attorney with such experience if you have questions regarding the probate process, your rights and obligations in the administration of an estate or trust, fiduciary duties relating to an estate or trust, or the feasibility of contesting a will or defending against a will contest.

 

DISCLAIMER

Please take note that this article is for information purposes only and was drafted with reference to New Jersey law. In some jurisdictions, this material may be deemed as attorney advertising. Past results do not guarantee future outcomes. Possession of this material does not constitute an attorney / client relationship.

New Jersey Probate & Estate Litigation: Funeral, Burial, and Disinterment Disputes

In addition to the traditional will contest, estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions.

Sadly, estate litigation may first manifest itself in disputes regarding funeral arrangements and the burial of a loved one. The right to control funerals and disposition of a loved one’s remains is set forth by statute. Pursuant to statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent died intestate (without a Will) the right to control the funeral and disposition, unless otherwise ordered by the Court, is set forth by statute in the following priority:

1.      Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);

2.      Majority of surviving adult children;

3.      Surviving parent(s);

4.      Majority of siblings;

5.      Other next of kin according to degree of consanguinity; and

6.      If no known relative, any representative providing written authorization.

With respect to the disinterment of human remains in New Jersey, a separate statute controls. In litigation involving disinterment of a loved one, the Judge may consider the decedent’s wishes, however expressed. In recent disputes regarding disinterment, the New Jersey Supreme Court has noted several key differences between disinterment and interment rights – as opposed to interment, disinterment is strongly disfavored, and the shared authority to disinter is provided, with joint written authorization required, to the surviving spouse, any adult children, and the owner of the interment space. As clearly set forth in the relevant statutes, and as highlighted in recent reported decisions, a surviving spouse’s primary authority to make an interment decision is reduced to authority shared with all surviving adult children of the decedent.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the funeral, burial, or disinterment of a loved one, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq., 2018, all rights reserved

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New Jersey Probate & Estate Litigation: Appointment of Estate Administrator

An administrator of an estate – be it a general administrator, administrator with the Will annexed, substitutionary administrator, administrator ad prosequendum, administrator pendente lite, temporary administrator, or other form – is an officer of the Court, and may secure his or her letters of administration only through appointment by the Surrogate or Superior Court.
Pursuant to the New Jersey Probate Code, when an individual passes away intestate:

Administration of the intestate’s estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.

If an application for letters of administration is made by the person first entitled thereto, no renunciation or notice is required by the Rules of Court. Where application for letters is made by a person other than one who alone has the right to letters, the applicant must produce either executed Renunciation for Administration documents, signed by any competent adult person whose right to the letters is prior or equal to that of the applicant, or proof that all such persons who have not renounced have received notice of the application. Where Renunciations have not been secured, the Surrogate’s Court may also require notice to interested parties other than those entitled to letters. In the event that the applicant indicates that there are no known next of kin, or he or she has no knowledge as to the existence of next of kin, the applicant is required to file proof that proper notice was provided to the Office of the Attorney General. It is important to note that failure to give the required notice may result in reopening of the judgment granting letters of administration.

In certain instances, such as where persons entitled to notice cannot be located, application for letters of administration must be made to the Superior Court, Chancery Division – Probate Part by way of Verified Complaint upon Order to Show Cause. In such instances, it is important to consult with an experienced probate attorney.

Because estate planning, administration, and litigation require specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate, or the fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, challenges to a Will, contests and caveats, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq., 2018, all rights reserved

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New Jersey Probate & Estate Law: What is Probate?

“Probate” is the legal process wherein the legitimacy of a Last Will and Testament is established. Upon the death of the person for whom the Will was drafted – known as the “testator” or “testatrix” – the probate process can begin; however, by law, the Surrogate cannot probate the Will and issue Letters Testamentary until the eleventh (11^th) day after the death of the decedent.

Once appointed by the Surrogate, the Executor or Executrix must properly serve “Notice of Probate” and will commence his or her fiduciary obligations including, but not limited to, locating, taking control of, and preserving estate property, keeping all interested parties reasonably informed as to the status of the estate, accounting for all assets and liabilities of the estate, and acting expeditiously to settle the estate either formally or informally.

Certain estates may not require probate; for example, where the only asset is real estate owned as tenants by entirety with rights of survivorship, or a life insurance policy or financial account payable on death to a designated individual, administration of the estate may not be required. While most estates will contain at least one asset requiring appointment of an appropriate fiduciary (e.g., a car in the name of the decedent, uncashed checks issued to the decedent, or financial accounts in the sole name of the decedent), it is important to determine whether or not probate is required under the circumstances. It is also important to determine whether or not such a “non-probate” estate is subject to inheritance and/or estate tax and, if so, the filing deadlines for any returns, the amount of tax due, and who is responsible for the payment of any such tax.

Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq.  –  2018  –  All Rights Reserved

Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, funeral and interment disputes, cemetery law, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

New Jersey Probate & Estate Litigation: Exceptions to the Executor’s Account

A fiduciary – an executor, administrator, guardian, or trustee – holds a position of trust. Because the fiduciary acts for the benefit of others, he must account for the manner in which he handles the assets entrusted to him. Accordingly, a fiduciary has an obligation to account to the beneficiary, at reasonable times, for each item of the estate or trust that comes into his hands.

An action by the personal representative of an estate to settle his or her account is commenced by filing a complaint and the issuance of an order to show cause in the Chancery Division – Probate Part of the Superior Court. In all actions for the settlement of accounts, interested parties (including creditors, heirs, beneficiaries, etc.) then have the opportunity to serve the personal representative with written exceptions thereto.

Pursuant to the New Jersey Rules of Court, in all actions by a fiduciary for the settlement of accounts, other than plenary actions, any interested party may serve the accountant with written exceptions to any item in or omission from the account, including any exceptions to the commissions or attorney’s fees requested. It is essential that any such exceptions be filed in a timely fashion and drafted and executed in proper form.

The exceptions to the account must state particularly the item or omission excepted to, the modification sought in the account, and the reasons for the modification. By way of example, exemptions to an account may challenge a matter described in the inventory, charges or allowances requested, items improperly omitted from the account, depreciation in investments, the executor commission, or the requested counsel fees. Exceptions which are not stricken because of insufficiency in law must be adjudicated upon an evidentiary hearing unless no factual dispute exists.

Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting / inventory or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Probate / Estate Practice Areas: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, insolvency petitions, will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)




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New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” Although the term “dissipation” is not defined in the statute, and “is not susceptible to a precise definition,” case law reveals that “the concept is a plastic one, suited to fit the demands of the individual case.”

Generally, “dissipation” may exist where one spouse utilizes marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy – the facts and circumstances in a particular case must be analyzed to determine whether a given course of conduct constitutes dissipation as contemplated by the statute. Where one party spends marital funds extravagantly or to his or her own benefit, the amount of property available for distribution by the court will obviously be diminished; however, each spouse is generally vested with the authority to spend marital funds for his or her own enjoyment until such time as the parties are contemplating a divorce. As discussed in detail in Kothari v. Kothari, dissipation of marital assets involves an attempt to reconcile these conflicting interests in the marital estate.

In the Kothari matter, the Defendant/Husband sent thousands of dollars to his parents in India, which he asserted was to satisfy his moral obligation to repay money he received from them to finance his medical education and initial passage from India. Although Plaintiff/Wife knew that marital money was being sent, it was clear to the court that she objected to this arrangement. The trial court concluded that, although the parties had accumulated essentially nothing during the marriage, the parties’ funds acquired during the marriage “went somewhere” and, therefore, Plaintiff/Wife was entitled to enjoy a fifty-percent (50%) interest in those assets.

On appeal, the Appellate Division noted that several factors must be considered when one party asserts that marital assets have been dissipated including (1) the proximity of the expenditures to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditures benefitted the “joint” marital enterprise or were for the benefit of one spouse to the exclusion of the other, and (4) the need for and amount of the expenditure. In affirming the trial court’s determination as to dissipation, the Appellate Division found it clear that the expenditures were not made to benefit the marital enterprise, served only Defendant/Husband’s personal interest, and were designed to divert from Plaintiff/Wife her equitable share of the marital assets. The Appellate Division also determined that, although the marital funds may not have been “in existence” at the filing date of the Complaint for Divorce, a finding of dissipation may necessitate that the asset subject to distribution take the form of a cash indebtedness to be imposed by the court upon one spouse in favor of the other. In regards to marital fault, the Appellate Division approved the trial court’s consideration of Defendant/Husband’s abandonment and callous disregard of his family, not because the conduct reflected marital fault, but because the conduct revealed an intent to deny Plaintiff/Wife her share of marital assets.

Whether or not marital assets have been “dissipated” as contemplated by the statute depends upon the facts and circumstances in a particular case. If you have any questions in regards to divorce in New Jersey, dissipation claims as to marital assets, equitable distribution, or any aspect of family law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved



Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, Esq. and Justin M. Smigelsky, Esq. represent individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Cliffwood Beach, Keyport, Keansburg, Middletown, Holmdel, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County (Brick, Jackson, Toms River), Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

Family Law Practice Areas:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

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New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled to letters, and all beneficiaries under the will. Such notice must also contain additional information including, but not limited to, the place and date of probate and the name and address of the personal representative. Within ten (10) days of mailing, proper proof of same must be filed with the Surrogate.

If the name or address of anyone entitled to notice of probate is not known, or cannot by reasonable inquiry be determined, then it may be necessary to publish the notice in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. Additionally, in the event that any property in the will is devoted to a present or future charitable use or purpose, like notice must be mailed to the Office of the Attorney General. In this instance, the Attorney General is entitled to a copy of the will with the notice, and it may be necessary to continually involve the Office of the Attorney General in the administration of the estate.

Although failure to provide the necessary notice of probate will ordinarily not render the probate judgment void, failure to provide the required notice could be of significant consequence, especially in the event of a will contest.

Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

 

Justin M. Smigelsky, Esq.  /  Timothy J. Little, P.C.  -  2017  -  All Rights Reserved

Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

 

 

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).

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