Kenneth Vercammen, Esq. handles Probate, Estate Administration and Wills. He is author of the ABA's book "Wills and Estate Administration".

New clients email us evenings and weekends go to

He was a speaker at the American Bar Association ABA Annual meeting and is Co-Chair of the Probate & Estate Planning Committee.
To schedule a confidential consultation, email us at or call.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500

Tuesday, July 26, 2016

Client Testimonials

Client Testimonials

When asked if they would use our firm again if they had another legal problem, our clients have said…

“Definitely!” – Mike Lehmann

“Sure, your service is excellent and staff is very professional and experienced.” – Jerry Zheng

“Have used previously and would use again. Extremely happy with result and treatment.” – James LaSasso Jr.

“Yes, Mr. Vercammen clearly communicated the process in advance and achieved resolution or communicated expeditiously.” – Steven Georges

“Yes, I was treated with respect. The service was fast and efficient.” – Carole Chinn

“Yes, Mr. Vercammen is a very good and practical attorney.” – David

“Yes, knowledgeable, straight forward, easy to understand advice. I trust your practice to guide your clients through the legal system with both personal sensitivity and high ethical standards.” – Prior Client

“I would, absolutely.” – Prior Client

“Yes. This was the second time in 2 years that I used your firm. If I were to need an attorney in the future, I wouldn’t even think of calling anyone else.” – Prior Client

“Yes. I appreciated the thoroughness.” – Prior Client

“Yes, was very satisfied. Mr. Vercammen was excellent!” – Anthony

“Without a doubt! Will also recommend to others.” – Prior Client

“Absolutely.” – Karen and Phil Degnan

“Yes. All aspects handled in a friendly, courteous, and professional manner.” – Prior Client

“Yes, I would.” – Prior Client

“Absolutely yes and no comment of your services.” – Sonny Odviar

“Just wonderful and great.” – Prior Client

“Yes, Ken was very quick the day of court.” – Bill Dame

“If I encountered another legal problem, I would most definitely use this firm again.” – Sadhama

“Yes, definitely. The procedures were explained clearly to me. I was kept informed about the progress of the case at all times.” – Murali

“This was my third representation by Mr. Vercammen.” – Jim Robinson

“Yes. Mr. Vercammen was very enthusiastic and confident about resolving my case. I am glad I selected a lawyer who is so ‘up-beat’ and personable.” – Prior Client

“Yes. Ken Vercammen always kept me informed of the proceedings and the steps he was taking. I appreciated his patience and understanding in answering all my questions.” – Daniel Armstrong

“Definitely yes!” – Grace

“Yes.” – Anthony DeGano

“I absolutely would consider your firm. I haven’t met with others yet, but to me your firm has set a high bar to measure others against, in terms of professionalism and providing all necessary information for me to make a decision. I am going with Kenneth.” – Mark Pubuco

“Yes.” – Amrish

“Yes. My first consultation was informative about my situation. I was told exactly what I needed to do to rectify my situation.” – Prior Client

“Yes, very competent, thorough, caring representation. Very thorough knowledge of legal matters and effective communications with Prosecutor.” – Prior Client

“Yes.” – Yah Nun Chien

“Definitely. You always treated me with respect and calmed my fears.” – Prior Client

“Yes.” – A. Haynes

“Yes, definitely. I think Mr. Vercammen is not only nice but very knowledgeable.” – Prior Client

“Yes. I will recommend to my friends.” – Prior Clients

When asked if they would recommend our firm to a friend, relative, or business associate who needed a lawyer, our clients have said…

“Yes. Ken is great, knowledgeable, considerate, and effective.” – Mike Lehmann

“Sure, excellent service.” – Jerry Zheng

“Yes. I have ultimate confidence in [his] professional, expert knowledge, and personal attention.” – James LaSasso Jr.

“Yes.” – Steven Georges

“Yes.” – Carole Chinn

“Yes and already have.” – David

“Yes.” – Prior Client

“Yes. I am saving your cards just in case the situation comes up that someone that I know needs a really good lawyer.” – Prior Client

“Yes, with absolutely no hesitation whatsoever.” – Prior Client

“Yes. I appreciated the thoroughness.” – Prior Client

“Yes, gave your card to someone the day in court [when] he came up to me after court and asked where I found my attorney [since] he did a great job!” – Anthony

“Yes!” – Prior Client

“Absolutely!” – Karen and Phil Degnan

“Yes.” – Prior Client

“Yes, already have given out the business card!” – Prior Client

“We did already for a long time, and I know I got a good lawyer.” – Sonny Odviar

“Very kind and helpful.” – Prior Client

“Yes.” – Bill Dame

“I would recommend this firm to a relative or friend.” – Sadhama

“Yes.” – Prior Client

“I would recommend you to anybody, service and results were first rate.” – David Gerstenfeld

“Absolutely, have done that.” – Jim Robinson

“Yes. I believe anyone would be impressed with the quality of services provided to them.” – Prior Client

“Yes.” – Daniel Armstrong

“Definitely yes!” – Prior Client

“Yes.” – Anthony DeGano

“Yes, absolutely. From my initial consultation with Akilah, to the rest of the staff, and to Kenneth, my case was treated as thoroughly as I could have asked for.” – Mark Pubuco

“Definitely. I already gave some of my friends your cards.” – Amrish Singh

“Yes.” – Prior Client

“Yes.” – Prior Client

“Yes. Thank you for your excellent service.” – Yah Nun Chien

“Absolutely. You always acted professionally and at the same time were able to make me laugh with your great sense of humor.” – Prior Client

“Yes, Ken makes you feel very relaxed and is very knowledgeable.” – A. Haynes

“Yes, absolutely. He is a great guy and staff is also wonderful.” – Prior Client

“Yes.” – Prior Client

Were you satisfied and other comments:

“I Felt very secure and in good hands for my situation. Thank you!” – Robert Papp

“Thanks so much for thoughtfulness and expert legal advice in producing our documents.” – Karen and Phil Degnan

“Services were good at all times.” – Murali Krishnaswamy

“Great seminar. More than informative, interesting, and entertaining. Highly recommended.” – Dr. Luis

“Ken, you are the best! Thank you for your awesome representation. I would recommend you to anyone in fact, I already have.” – Grace Baratta-Perez

“I would like to thank you very much for taking care of my case. If [it] was not for you, I could have been in jail. You did a great job in representing me, and I am very grateful for that.” – Amrish Singh

Client Testimonials

When asked if they would use our firm again if they had another legal problem, our clients have said...

"Yes, this is the third time to date." - Roseanne

"...I would use your law firm in a heartbeat." - Lawrence

"...{I am} very satisfied and you were very informative and          
professional."- Joe

"...everything was done in a professional manner." - Edna

"Mr. Vercammen's knowledge of the law and prior experience as a   Prosecutor brought a high level of credibility that furthered a quick and favorable outcome.  I was impressed by his services as well as the manner in which he conducted himself.  I would not hesitate to recommend him or use him again." - Rose

"I would and have already mentioned to many friends what great service I received!" - Joseph

"Most definitely.  {The} staff and Mr. Vercammen made me feel confident and at ease.  This is what I look for when I need to make important decisions." - Prior Client

"Yes, I was completely satisfied with my representation and extremely happy with the no-points judgment." - Susan

"Yes, willingly.  From the day I called regarding my traffic ticket to the date of the court case, I was given due respect." - Prior Client

"Yes, I most certainly would.  Mr. Vercammen has always done the best job he could do." - Arthur

"Absolutely -- and being in recovery (thanks to Ken's suggestion about rehab), I meet many prospective clients and give out cards." - Prior Client

"I absolutely would!  Ken, you did an exceptional job!" - Prior Client

"...I would want Mr. Vercammen to represent me again -- he was very knowledgeable and always kept me abreast on what actions he would be taking." - Prior Client

"Absolutely!" - Glenn

"Yes, I would use your firm in all my legal problems. Thank you." - Prior Client

"Yes, and we will recommend to our relatives and friends." -Gil and Rachel Morejon
"Yes, we have had you represent members of our family four times.  You have always responded very well to our needs." - Nick Sorrentino

When asked if they would recommend our firm to a friend, relative, or business associate who needed a lawyer, our clients have said...

"Yes, your firm was very professional and courteous." - Lawrence

"...I would feel comfortable recommending your firm to a friend. - Edna

"Yes, in fact I already have recommended you." - Dave

"Excellent quality, very professional, concise and fair." - Rose

"...I believe Mr. Vercammen would represent anyone with dignity and do his best to satisfy their claims." - Prior Client

"Yes -- Mr. Vercammen's congenial relationship with the court is very beneficial." - Susan

"...Ken is the 'master' of criminal and motor vehicle law -- he knows the ins and outs and never gives unrealistic hopes to clients, and does better than he promises." - Prior Client

"Yes -- you are a local firm, reasonable and efficient." - Diane

"Yes.  Ken has a wonderful, friendly personality and he gets the job done quickly and efficiently." - Janet

"...very knowledgeable, respectful, courteous, and goes the extra mile for his client." - Prior Client

"Absolutely, already have." - Glenn

Were you satisfied and other comments:

"Mr. Vercammen had 2 of my tickets dismissed and my other 2 tickets were given the minimum fine." - Prior Client

"Yes, because he had the charge dropped." - Janet

"We got a better deal than I ever thought we would." - Prior Client

"It was handled efficiently and expeditiously." - Diane

"Yes, because I was not expecting the outcome Mr. Vercammen was able to reach for me." - Arthur

"Thank you for being so kind and for everything else!" - Prior Client

 “Everyone there was friendly and professional and we felt very comfortable at every meeting. We were very appreciative that Mr. Vercammen was willing to work with our family members as well as us and respect their input” – Lois

“All emails and phone calls were promptly returned and any questions/concerns were appropriately answered. Not only was the outcome of the case favorable, but Ken was a pleasure to deal with. Ken is very personable and always professional. I couldn’t be happier with his service. It exceeded our expectations and put our minds at ease” –The Woodwards

“In addition to being a very well-versed and experienced attorney, Ken kept me abreast of deadlines and helped me manuver easily through my court dealings. I felt I had an attorney willing to go the extra mile to represent me [compared to experiences with other attorneys]. The legal information posted on you website was the extra bit of effort that helped me to decide on selecting your firm. To me it demonstrated Ken’s depth of knowledge and experience involving trial law” –Prior Client


Gifts prior to death

On January 30th 2014, the New Jersey Supreme Court explained the law on gifts between father and son in Bhagat v. Bhagat 217 N.J. 22 (2014)

 The court remanded the case to the trial court for proceedings consistent with the Supreme Court decision clarifying the standard to apply when determining whether a transfer of property between family members is a gift.   This case involved a father’s 1989 transfer of stock in a closely held corporation to the defendant, his son.   The son claimed that the transfer of stock was a gift to him from the father.  The father denied that the transfer was a gift, but was done for financing purposes and was never intended to be final.   

 The Supreme Court in Bhagat held in an opinion written by Judge Cuff:

“There are three elements of a valid and irrevocable gift. First, there must be actual or constructive delivery; that is, the donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift. Pascale v. Pascale, 113 N.J. 20, 29 (1988). Second, there must be donative intent; that is, the donor must possess the intent to give. Ibid. Third, there must be acceptance. Ibid. We have also recognized that the donor must absolutely and irrevocably relinquish ownership and dominion over the subject matter of the gift, at least to the extent practicable or possible, considering the nature of the articles to be given. In re Dodge, 50 N.J. 192, 216 (1967); accord Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013); Farris v. Farris Eng g Corp., 7 N.J. 487, 500-01 (1951).
Actual delivery of the gifted property is necessary except where there can be no actual delivery or where the situation is incompatible with the performance of such ceremony. Foster v. Reiss, 18 N.J. 41, 50 (1955) (quoting Cook v. Lum, 55 N.J.L. 373, 374 (Sup. Ct. 1893)). A gift of stock is such a situation because the ownership of stock is now often recorded simply in book form by the issuer or a broker. See N.J.S.A. 12A:8-301b. Therefore, [i]n the absence of express provisions to the contrary, stock may be transferred by delivery of a separate written transfer, without delivery of any certificate where it is not in possession of the transferee. Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 162 (App. Div. 1984). In other words, the delivery of the stock certificate may be constructive, and the failure to record the transfer on the corporate books does not defeat the gift so long as the transfer is accompanied by words that express donative intent and the donor has divested himself completely of the property. Id. at 162-63.
The burden of proving an inter vivos gift is on the party who asserts the claim. Sadofski v. Williams, 60 N.J. 385, 395 n.3 (1972). Generally, the recipient must show by clear, cogent and persuasive evidence that the donor intended to make a gift. Farris, supra, 7 N.J. at 501. When, however, the transfer is from a parent to a child, the initial burden of proof on the party claiming a gift is slight. Metro. Life Ins. Co. v. Woolf, 136 N.J. Eq. 588, 592 (Ch. 1945), aff d, 138 N.J. Eq. 450 (E. & A. 1946). In such cases a presumption arises that the transfer is a gift. Peppler v. Roffe, 122 N.J. Eq. 510, 515 (E. & A. 1937); First Nat l Bank v. Keller, 122 N.J. Eq. 481, 483 (E. & A. 1937); Bankers Trust Co. v. Bank of Rockville Ctr. Trust Co., 114 N.J. Eq. 391 (E. & A. 1933); Prisco v. Prisco, 90 N.J. Eq. 289, 289 (E. & A. 1919); Herbert v. Alvord, 75 N.J. Eq. 428, 429 (Ch. 1909); Betts v. Francis, 30 N.J.L. 152, 155 (Sup. Ct. 1862). The presumption does not apply if the parent is a dependent of the child. Peppler, supra, 122 N.J. Eq. at 515. See also Weisberg v. Koprowski, 17 N.J. 362, 372-73 (1955). The rationale for the presumption is that a child is considered a natural object of the bounty of the donor. Weisberg, supra, 17 N.J. at 373. See Restatement (Third) of Trusts 9(2) (2001) (noting that resulting trust does not arise when transfer of property is made by one person but payment is made by another when recipient is spouse, dependent, or other natural object of person making payment).

Monday, July 25, 2016

Trustee breached fiduciary duty IN THE MATTER OF THE ESTATE OF EVELYN BERRY.


Argued April 5, 2016 – Decided April 15, 2016

Before Judges Hoffman, Leone and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, Docket No. 96-00278.

                                                                         SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-1531-14T1

            Defendant Darryl Fusco appeals from an October 8, 2014 final order of the Chancery Division, Probate Part, awarding damages and counsel fees in favor of plaintiffs Garrett and Brook Berry in the amount of $554,893.31.  We affirm.
            We discern the following facts from the record of the six-day bench trial before Judge Edward M. Coleman.  Evelyn Berry died testate on March 30, 1995.  Shortly before her death, she signed a new twenty-six-page Last Will and Testament (the Will).  Evelyn[1] had four children from two different marriages.  The two older, adult children from her first marriage were defendant and Tara.  The two younger, minor children from her second marriage were Garrett and Brook.  At the time of her death, Garrett was fourteen and Brook was eleven.
            In Article Four of the Will, Evelyn established the "Berry Family Trust" (the Trust) to provide for the maintenance, support, and education of her two minor sons:
In making the provision for distribution under this paragraph it is my intent that the primary purpose of this trust is to provide for the care and education of my said sons who, at the time of the preparation of this will, are minors and that only to the extent that any assets remain in the BERRY FAMILY TRUST after the care and education of my said sons have been provided for . . . shall the remaining distribution provisions of the BERRY FAMILY TRUST come into effect.  I make this provision not because of any lack of love or affection for my adult children, DARRYL G. FUSCO and TARA L. ARNOLD, but because of a desire to treat all of my children equally and to provide for my currently minor sons the same type of benefits and advantages previously provided for my adult children by making provision for the care and education of my said minor sons just as during my life I assisted in providing for the care and education of my said adult children. 

At the time the youngest of Evelyn's surviving children reached the age of twenty-four, or the age of twenty-one and was not enrolled in a college or trade school, the Will provided for the equal division of the remaining principal among Evelyn's surviving children.  The Will also appointed defendant as co-trustee of the Trust.
When Evelyn died, her business — Lyn's Liquors (the liquor store) — represented the principal asset of her estate.  In addition, Evelyn had a house located in Branchburg (the Branchburg House), as well as an interest in an estate in Germany estimated at $200,000.  To fund the Trust, Article Seven, Section (u) of the Will allowed defendant to purchase the liquor store "for a purchase price equal to the greater of 28% of [the liquor store's] gross sales for the calendar year immediately preceding the year of my death or, if different and higher, the 1995 calendar year."  The Will further provided for the payment of the purchase price "in equal amortized monthly payments over a term of eleven (11) years with interest at the rate of 15.39% compounded annually."[2]  The Will also included a substantial pre-payment penalty "equal to one fifth of the remaining balance due on the note at the time of prepayment." 
            Following Evelyn's death, defendant did purchase the liquor store, as permitted by the Will.  Defendant presented little testimony or documents regarding the sale.  While defendant claimed he made payments for the liquor store, his records were incomplete.  Plaintiffs asserted that not only did defendant fail to make timely and full payments, he later sold the liquor store — in 1998 — for approximately $365,000 and failed to pay off the balance owed for the purchase of the liquor business.  Importantly, Article Seven, Section (u) of the Will also established the right of the beneficiaries to recover attorney's fees should defendant default on his obligation to pay the amount owed for the purchase of the liquor store.
            According to plaintiffs, defendant mismanaged the Trust by, among other things, speculating on volatile stocks and trading on margin; misappropriating funds by borrowing the beneficiaries' money at will without interest or repayment; and treating the money as his own.  This conduct caused the beneficiaries to file suit to recover their inherited money which defendant "had stolen, squandered and misappropriated."  
            In his oral opinion, Judge Coleman found that defendant breached his fiduciary duty by failing to keep adequate records, failing to make reasonable investments, and making certain investments that were prohibited by the Will.  The judge further found that defendant breached his fiduciary duties to invest and manage the assets solely in the interests of the beneficiaries, noting that "defendant [] admits to borrowing large sums of money from the trust assets for his own benefit, to invest in his own liquor stores, to pay his own bills for those liquor stores."  Further, defendant "admits to trading on . . . margin[,] which[] was prohibited."  He "borrowed money and never repaid it [and used] the trust funds for his own personal benefits, all showing bad faith on his part with regard to his fiduciary duties." 
The judge adopted the findings of plaintiffs' financial expert, Joel Molnar, CPA, MBA, who testified that a reasonable fiduciary would have invested approximately half in stocks and half in bonds with a conservative five-percent return.
            The judge also found that defendant breached his fiduciary duties by failing to maintain adequate records and account for trust assets, and by engaging in self-dealing by investing in trust funds and entities in which he had an ownership interest.  Nevertheless, the judge found no basis for the award of punitive damages.  The judge also rejected defendant's argument that Tara should share liability as a co-trustee, finding that she was not complicit in defendant's wrongful activities. 
            The judge found credible and adopted the calculation of plaintiffs' expert regarding the net purchase price of the liquor store, and various credits that should apply.  The court specifically rejected defendant's claim that the purchase price of the liquor store required a downward adjustment to reflect a $25,000 judgment, as defendant presented no evidence that he satisfied the judgment.  The court also rejected defendant's argument that an earlier, alleged settlement with Garrett represented a full and complete release of any of Garrett's claims, finding "deception" by defendant regarding "the money that was actually owed to Garrett." 
             The court further awarded attorney's fees to plaintiffs based on the provision in the Will authorizing defendant's purchase of the liquor store, which included a valid attorney's fee provision that defendant accepted when he purchased the store.  The October 8, 2014 Order of Judgment awarded plaintiffs $554,893.31, representing $94,621.93 in compensatory damages to Garrett; $81,664.55 in compensatory damages to Brook; $240,747.83 in compensatory damages to Garrett and Brook for the liquor store; and $137,879 for attorney's fees and costs incurred by plaintiffs.  This appeal followed.

Initially, we note that the scope of our review of findings made by a trial court in a non-jury case is limited.  We review the factual findings made by a trial judge to determine whether they are "supported by adequate, substantial and credible evidence."  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Such findings made by a judge in a bench trial "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice."  Id. at 483-84.  Factual findings that "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case" enjoy deference on appeal.  State v. Johnson, 42 N.J. 146, 161 (1964).
On appeal, defendant presents the following arguments for consideration:












            After carefully reviewing the trial record, we reject defendant's arguments and affirm substantially for the reasons expressed by Judge Coleman in his oral opinion of September 2, 2014.  The record contains adequate, substantial and credible evidence supporting the judge's findings and conclusions.  We add the following comments.
Defendant's claim that the court erred in not assessing any damages against Tara clearly lacks merit.  While plaintiffs could have asserted a claim against Tara, see Branch v. White, 99 N.J. Super. 295, 306 (App. Div.), certif. denied, 51 N.J. 464 (1968), they declined to do so.  The court found credible Tara's testimony that she did not control, invest, or borrow any trust funds or assets as defendant did.  Instead, the court found that it was defendant who improperly borrowed from the Trust, traded on the margin, lost thousands in speculative option trading, and misappropriated funds.  Tara testified that she only opened the Schwab accounts under defendant's direction, and closed Brook's account because money had been disappearing from it.  Judge Coleman found defendant solely responsible for plaintiffs' damages based on defendant's deception and misconduct, and properly rejected defendant's request to hold Tara liable for not stopping him.  We defer to Judge Coleman's findings.  See Cesare v. Cesare, 154 N.J. 394, 412 (1998). 
            Defendant's claim that the court erred in awarding attorney's fees, or alternatively, that the amount was excessive, also clearly lacks merit.  The scope of appellate review of a counsel fee award is narrow and "fee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion."  Rendine v. Pantzer, 141 N.J. 292, 317 (1995).  New Jersey has adopted the "American Rule" which prohibits recovery of counsel fees by the prevailing party against the losing party.  Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 404 (2009).  Despite the constraints of the American rule and New Jersey's public policy against fee-shifting, an allowance of counsel fees may be made even if not authorized by rule or statute where the parties themselves have so agreed in advance by contract.  Satellite Gateway Com. v. Musi Dining Car Co., 110 N.J. 280, 285-86 (1988); see also In re Unanue, 311 N.J. Super. 589, 597-98 (App. Div.) (enforcing testamentary trust provision calling for payment of attorney's fees by the party losing litigation out of disputes over the trust), certif. denied, 157 N.J. 541 (1998), cert. denied, 526 U.S. 1051, 119 S. Ct. 1357, 143 L. Ed. 2d 518 (1999).
            In the context of wills, "[i]f the devise be upon terms which are capable of being enforced in equity, and the gift be accepted, equity will compel compliance with the conditions annexed to it."  Bird v. Hawkins, 58 N.J. Eq. 229, 243 (Ch. 1899).  We discern no basis for defendant's argument that the court abused its discretion in awarding the attorney's fees based on the terms of the Will.  The court reasoned that by accepting the terms of the Will concerning the purchase of the liquor store, defendant agreed to accept the provision making him liable for attorney's fees in the event he defaulted.  We further note that the court limited the award of attorney's fees to those fees incurred in connection with defendant's default on the payments owed for purchase of the liquor store.  Our review of the record convinces us that the trial court reasonably exercised its discretion in the amount of attorney's fees awarded here. 
Defendant's remaining appellate arguments lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E).

Description: certify

[1] For ease of reference, we refer to the decedent and her children other than defendant by their first names.
[2] The eleven years would thus provide a steady stream of income until her youngest son, Brook, was twenty-two years old.