Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500

Tuesday, May 22, 2018



                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4004-15T1

                                       APPROVED FOR PUBLICATION

                                            March 28, 2018
.                 APPELLATE DIVISION

         Submitted November 6, 2017 – Decided March 28, 2018

         Before Judges Sabatino, Ostrer and Whipple.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Bergen County, Docket No.

         Chiesa Shahinian & Giantomasi PC, attorneys
         for    appellants/cross-respondents   Jacob
         Nelson and Ayelet Nelson, Ariel Nelson and
         Alexandra Nelson-Tal (A. Ross Pearlson,
         Daniel D. Barnes and Brigitte M. Gladis, on
         the briefs).

         Lorraine   Teleky-Petrella,    attorney   for
         respondent/cross-appellant Jared M. Lina.

    The opinion of the court was delivered by


    The principal issue in this appeal is whether a trial court

may look beyond the apparently plain language of a trust that

benefitted the settlor's "grandchildren," to determine whether

the settlor intended to benefit only some of her grandchildren.

We conclude a court may.       As the trial court here confined
 itself to the words found within the four corners of the trust,

we reverse the grant of partial summary judgment to a claimed

beneficiary, and remand for trial.


     The      late   Violet     Nelson        left     trust    property      to    her

"grandchildren" per capita after the death of her husband, an

income beneficiary.           The trust stated that "the then principal

and all accrued or undistributed net income of the trust shall

be distributed in equal shares per capita and not per stirpes to

Settlor's grandchildren who survive Settlor . . . ."                           On its

face,   the    trust     apparently      benefited       all     six    children     of

Violet's   three     children     –    sons    Jacob    (known     as    "Jack")    and

Robert, and daughter Jacoba.1

     Jack,     the   trustee,     sought       a     declaratory       judgment    that

Jacoba's      two      sons     were     not         included     among       Violet's

"grandchildren."         He    maintains      that     Violet   did     not   consider

Jacoba's sons to be her "grandchildren," because Jacoba married

outside their Orthodox Jewish faith.                   Jack contends that after

Jacoba's marriage in 1970, Violet mourned her as if she were

dead and cut off contact with her.

  The trust delayed distribution to any grandchildren under
twenty-one years of age.    When Violet executed the trust in
2005, two of the grandchildren fell into that category.
Robert's only child was sixteen.  The youngest of Jack's three
children was nineteen.

                                         2                                    A-4004-15T1
        That fact and other extrinsic evidence allegedly illuminate

the restrictive meaning of "grandchildren" that Jack propounds.

The attorney who drafted the trust stated that he understood

that    Violet       did    not    count         Jacoba's      children     among       her

grandchildren, nor even acknowledge their existence.                              He used

the word "grandchildren" to include only Jack's and Robert's

children.          Although   Jack     and       Violet's    husband      directed      the

attorney to draft the trust, the attorney said that he reviewed

the trust with Violet, explained that only Jack's and Robert's

children would benefit, and she understood.

       Jack    acknowledges       that     after     years      of   silence      between

Violet and Jacoba, the two attempted reconciliation in 1986.

But    he    contends      relations     were      cut   off    again     after    Violet

learned that Jacoba's children had been baptized.                          Jack points

to an unprobated will Violet signed in 1988.                             It identified

Jacoba as her daughter, but omitted Jacoba's sons among the

listed grandchildren, and expressly left nothing to Jacoba or

her "surviving issue."            A 2001 codicil also referred only to her

"four grandchildren."

       One    of     Jacoba's      sons,         Jared      Lina,      opposed     Jack's

declaratory        judgment    action.           Jared   and     his    brother      first

learned the trust existed when its scrivener sent him a letter,

asking him to renounce and waive any claim.                      Jared refused.           He

                                             3                                    A-4004-15T1
 contended the trust was clear on its face.                     He also marshaled

competing extrinsic evidence to show that Violet intended to

bestow her property on her grandchildren without exception.                     He

presented evidence of the reconciliation between his mother and

Violet in 1986.          He included letters in which Violet expressed

her love for Jacoba and alluded to the role her husband played

in the schism between them.               Jared also described gatherings

involving his branch of the family and Jack's family, to belie

the claim that his mother's side was "dead" to the rest of the

family.       He noted that his mother visited Violet during her

final illness.

     Jared filed a counterclaim, alleging that Jack breached his

fiduciary duty by wrongfully retaining income from the trust

after   his     father   died,   rather       than   promptly   terminating    the

trust     and    distributing     the     principal      and    income   to    the

grandchildren.       Jared also sought an accounting and appointment

of a successor trustee.

     After a period of discovery, Jared and Jack filed cross-

motions for summary judgment on the trust's interpretation. 2                  The

  Jack filed his motion on behalf of himself and his three
children as "parties in interest." All four filed the notice of
appeal. However, for convenience, we will refer to appellant as
Jack.   We note that neither Robert's son, nor Jared's brother
Jason, formally participated in the litigation. Jason wrote an
email to the trust's scrivener recognizing that Violet never

                                          4                              A-4004-15T1
 trial judge determined that Jared and his brother were trust

beneficiaries.         The court relied solely on the plain meaning of

"grandchildren."          The    judge    concluded      that   In   re    Estate    of

372 N.J. Super. 432, 443 (App Div. 2004), which we

discuss       below,   barred    the     court    from    considering       extrinsic

materials.       The judge acknowledged that had he looked beyond the

trust's four corners, the evidence would have created a genuine

issue    of    material    fact,     which     would     have   precluded     summary

judgment for either side.

       The     court    later    denied        Jack's    subsequent        motion    to

reconsider.       Jack contended the court should have applied the

New Jersey version of the Uniform Trust Code (NJUTC), L. 2015,

c. 276, codified at 
N.J.S.A. 3B:31-1 to -84, which was enacted

while the cross-motions were pending.                  Jack invoked two sections

of the new law that allow a court to construe or reform a trust

to conform to a settlor's probable intent.                      
N.J.S.A. 3B:31-31

(Section 31) states, "The court may reform the terms of a trust,

even    if    unambiguous,      to   conform     the    terms   to   the    settlor's

probable intent if it is proved by clear and convincing evidence

that there was a mistake of fact or law, whether in expression

intended to leave him a share. He expressed his willingness to
renounce in writing any interest in the trust, provided there
were no negative tax consequences to him.

                                           5                                  A-4004-15T1
 or inducement."         The following section states, "Nothing in this

act   shall    prevent       the     court    from     construing      the    terms    of    a

trust, even if unambiguous, to conform to the settlor's probable

N.J.S.A. 3B:31-32 (Section 32).

      The court held that the NJUTC did not apply because its

effective date occurred after the decisions on the cross-motions

and the motion to reconsider.                 See L. 2015, c. 276, § 4 (stating

the act shall take effect on the 180th day after enactment).

The court was unconvinced that Sections 31 and 32 of the NJUTC

applied     pursuant        to     N.J.S.A.       3B:31-84(a)(3).            That   section

states that, except as otherwise provided, the new law "applies

to judicial proceedings concerning trusts commenced before its

effective date unless the court finds that application of a

particular provision . . . would substantially interfere with

the effective conduct of the judicial proceedings or prejudice

the rights of the parties . . . ."                    Ibid.

      The     court    had        earlier    denied    Jared's    motion       to   dismiss

Jack's      complaint        for     lack    of     standing     and     to    appoint       a

substitute trustee.                In the order denying Jack's motion for

reconsideration,            the     court    granted     Jared's       request      for     an

accounting      —     the    court     having      determined     that       Jared,    as    a

recognized beneficiary, had standing to request one.                             The court

also awarded Jared fees.

                                               6                                    A-4004-15T1
       Jack thereafter appealed from the court's order that found

Jared and his brother to be beneficiaries.                     Jared cross-appealed

from the order denying his motion to dismiss and to appoint a

substitute trustee.


      In    considering         Jack's   appeal      from   the   grant       of    summary

judgment, we review the trial court's order de novo, and employ

the same standard as the motion judge under                            Rule 4:46-2(c).

Henry    v.   N.J.    Dep't      of   Human       Servs.,   
204 N.J.       320,    329-30

(2010).       We do not quarrel with the trial court's assessment

that the evidential materials on file create a genuine issue of

fact as to the intended meaning of the term "grandchildren."

But the trial judge concluded the fact issue was not material,

as he believed he was bound to apply the plain meaning of the

term.      As to that legal conclusion, we disagree.

      The court's primary goal in interpreting a trust agreement

is to fulfill the settlor's intent.                    "[T]he goal always is the

ascertainment        of   the    testator's        intent   and   it    is    not     to    be

thwarted      by   unduly       stressing     'the     literal    meaning'          of     his

words."       Fidelity Union Trust Co. v. Robert, 
36 N.J. 561, 565

(1962) (quoting Bank of New York v. Black, 
26 N.J. 276, 284

(1958)).      The court may even read a trust or will "contrary to

its     primary      signification"         if     necessary      "to     prevent          the

                                              7                                     A-4004-15T1
 intention of the testator from being defeated by a mistaken use

of language."         Id. at 566 (citation omitted); see also In re

Estate of Branigan, 
129 N.J. 324, 331-32 (1992) (noting that

under the doctrine of probable intent the courts have "construed

the language of a will in a fashion contrary to its literal,

technical,     or    settled     meaning");    Bottomley         v.     Bottomley,      
134 N.J. Eq. 279, 291 (Ch. 1944) (recognizing judicial power "to

effectuate     the    manifest     intent      of    a    testator         by    inserting

omitted words, by altering the collocation of sentences, or even

by   reading        his   will     directly         contrary       to      its    primary

signification is well established").

     The Court has acknowledged that in ascertaining intent, its

focus   really      is    probable    intent.            "[W]hen      we    say    we   are

determining the testator's intent, we mean his probable intent."

Fidelity Union, 
36 N.J. at 564; see also In re Estate of Payne,

186 N.J. 324, 335 (2006).            The Court speaks of "probable intent"

because "it is impossible to determine with absolute certainty

[the testator's] actual subjective intent."                        Morristown Trust

Co. v. McCann, 
19 N.J. 568, 572 (1955).

     The   Court      "continue[s]        to   adhere      to    the       view    of   the

doctrine     of     probable     intent    expressed        in     Fidelity        Union."

186 N.J. at 335.           The doctrine does not permit a court to

"conjure up an interpretation or derive a missing testamentary

                                          8                                       A-4004-15T1
 provision out of whole cloth."                    Engle v. Siegel, 
74 N.J. 287,

291    (1977)    (quoting    In    re    Estate     of     Burke,    
48 N.J.    50,   64

(1966)).        However, a court "may, on the basis of the entire

will,   competent        extrinsic      evidence     and    common    human      impulses

strive reasonably to ascertain and carry out what the testator

probably intended . . . ."                Ibid. (quoting Burke, 
48 N.J. at

       The doctrine is enshrined in statute.                    See 
N.J.S.A. 3B:3-

33.1.    That states that the trust's language and statutory rules

of    construction       control   "unless        the    probable    intent      of   such

settlor or of such individual, as indicated by the trust or by

such    governing        instrument       and      relevant     circumstances,          is

N.J.S.A. 3B:3-33.1(b).             See William A. Dreier, Paul

A. Rowe, and Andrea J. Sullivan, Guidebook to Chancery Practice

in N.J., § V(C)(1) (9th ed. 2014) (noting that 
N.J.S.A. 3B:3-

33.1 codifies the judicial doctrine of probable intent).3

       The judicial effort to fulfill a settlor's or testator's

probable        intent     takes        two       forms:     interpretation,            and

reformation.       It is sometimes difficult to discern which task a

court has undertaken.             The former involves finding the meaning

"of language already in the instrument."                        See Uniform Trust

  Enactment of the NJUTC did not affect 
N.J.S.A. 3B:3-33.1, which
appears consistent with 
N.J.S.A. 3B:31-31, -32, quoted above.

                                              9                                  A-4004-15T1
 Code, cmt. to § 415, 7C U.L.A. 515 (2000).4                    For example, in In

re   Trust    Created    by     Agreement      Dated   Dec.    20,    1961,    ex     rel.

194 N.J. 276, 280 (2008), a principal issue involved

interpreting the word "spouses" to determine whether the settlor

intended      to    benefit      "surviving        spouses,"       where     the    trust

expressly benefitted the settlor's children and "their spouses."

      On     the    other     hand,     reformation       involves         remaking     or

modifying     an    instrument,       to     correct   mistakes,      to    fulfill    an

unexpressed        intention,    or     to   address   circumstances         that     were

unforeseen.         Uniform     Trust      Code,   cmt.   to   §    415;    see,    e.g.,

129 N.J. at 335 (reforming a testamentary trust to

account for changes in tax law after testator's death); compare

Restatement (Third) of Prop.: Wills and Donative Transfers §§

11.1 – 11.3 (Am. Law Inst. 2003) (discussing interpretation of

ambiguous provisions of a will or trust), with id. §§ 12.1 –

12.2 (discussing reformation of a will or trust).5

4 Section 31 of the NJUTC is based on Section 415 of the uniform
law. Only the former uses the term "probable intent." Section
415, by comparison, states: "The court may reform the terms of a
trust even if unambiguous, to conform the terms to the settlor's
contention if it is proved by clear and convincing evidence that
both the settlor's intent and the terms of the trust were
affected by a mistake of fact or law, whether in expression or
inducement." Uniform Trust Code, § 415.
  In interpreting an instrument, the court attempts to ascertain
actual and specific intent, even if not clearly expressed.    In
reforming an instrument, the court ascertains actual intent,

                                             10                                A-4004-15T1
        The preponderance-of-the-evidence standard of proof applies

to     interpretation;        however,           the     more        rigorous          clear-and-

convincing     standard       of     proof       applies        to    reformation.                See

Fidelity    Union,     
36 N.J.    at    565        (stating       "the       object      is   to

ascertain      'the        probable       intent'        of      the        testator         by     a

'preponderance of the evidence'"); Pivnick v. Beck, 
326 N.J.

Super. 474, 481 (App. Div. 1999) (noting that "[r]eformation of

trust     agreements        in      probate       actions         requires             clear      and

convincing     proof"),       aff'd,       
165 N.J.    670,        671    (2000)        (noting

"preponderance        of    evidence       to    resolve        ambiguity             in   donative

instruments;     clear        and     convincing         evidence           to    reform       such

instruments" (quoting Restatement (Third) of the Law Governing

Lawyers § 51 cmt. f (Am. Law Inst. 1998))); see also St. Pius X

House of Retreats, Salvatorian Fathers v. Diocese of Camden, 
88 N.J.    571,   581     (1982)       (reformation          is    proved           by    clear      and

convincing evidence); Restatement (Third) Prop. § 10.2, cmt. i;

but see In re Estate of Munger, 
63 N.J. 514, 521 (1973) (stating

that a court must be "thoroughly convinced" of a testator's

probable    intent,        where    the    interpretative             issue       pertained       to

mistakenly expressed, or inferred intent, that is, what the
settlor or testator "probably intended should be the disposition
if the present situation developed." Burke, 
48 N.J. at 64.

                                             11                                            A-4004-15T1
 whether the trustee's power to invest in "securities" included

real estate).

       The higher standard of proof for reformation is warranted

to   prevent     reliance   on    "contrived     evidence."     Uniform     Trust

Code, cmt. to § 415; see also Restatement (Third) Prop. § 12.1,

cmt.     e.      The    NJUTC    expressly     states   that   the   clear-and-

convincing standard applies to reformation of trust terms to

correct mistakes and conform to the settlor's probable intent.

N.J.S.A. 3B:31-31.6

       With    respect    to     interpretation,    our   courts     have   long

disapproved the so-called "plain meaning rule," which bars a

court from looking beyond the face of a writing to consider

extrinsic evidence in ascertaining intent.                 "Evidence of the

circumstances is always admissible in aid of the interpretation

of an integrated agreement.             This is so even when the contract

on its face is free from ambiguity."                Atlantic N. Airlines v.

12 N.J. 293, 301 (1953); see also Conway v. 287 Corp.

Ctr. Assocs., 
187 N.J. 259, 269 (2006) (quoting Schwimmer and

noting    that    the    Court    has   long   followed   Professor    Corbin's

  The New Jersey drafters of the NJUTC stated their intention to
preserve existing law pertaining to the doctrine of probable
intent.   Sponsor's Statement to Assembly Bill No. 2915, at 37
(March 13, 2014). We therefore presume that it did not intend
to preclude resort to the preponderance-of-the-evidence standard
where discernment of probable intent involves interpretation,
not reformation.

                                         12                            A-4004-15T1
 "expansive     view"    of   a    court's       interpretative           task).      "[I]n

construing     contractual        instruments,         our    courts      will    broadly

search   for   the     probable        common   intent       of    the   parties,     will

consider their relations, the attendant circumstances and the

objectives they were trying to obtain, and will endeavor to find

a   reasonable    meaning        'in    keeping    with       the    express      general

purpose.'"     Fidelity Union, 
36 N.J. at 567 (quoting Tessmar v.

23 N.J. 193, 201 (1957), a contract case).                                 If an

ambiguity     exists,    then     resolution      of    the       document's      intended

meaning is a fact issue.                Michaels v. Brookchester, Inc., 
26 N.J. 379, 387-88 (1958).

      If anything, these principles of interpretation apply with

greater force in interpreting trusts and wills.                           In construing

contracts, "courts may be confronted with significant problems

of reliance and the troublesome goal of effecting the common

intent   of    different     parties       whereas      in    the    construction        of

wills, there are fewer problems of reliance and the goal is the

effectuation of the intent of the testator alone."                         Fidelity, 
36 N.J. at 567.7

  We recognize that our Court has enunciated a less expansive
view   of   statutory  construction.      In   discharging   its
responsibility to effectuate the Legislature's intent, a court
shall "start with the plain language of the statute.       If it
clearly reveals the Legislature's intent, the inquiry is over."
State v. Harper, 
229 N.J. 228, 237 (2017); see also In re

                                           13                                     A-4004-15T1
       The Supreme Court held in Wilson v. Flowers, 
58 N.J. 250,

263 (1971), that it does not matter whether an ambiguity was

"latent" — that is, discernable only by resort to extrinsic

evidence    —    or   "patent"    —   identifiable   on   the   face   of    the

document.       "[I]n deciding whether there is an ambiguity, a court

should     always     admit      extrinsic     evidence   including     direct

statements of intent since experience teaches that language is

so poor an instrument for communication or expression . . . ."

Ibid.       Extrinsic     evidence     shall    be   considered   twice:      to

determine if there is ambiguity, and, if there is, to resolve

it.     Ibid.; see also In re Estate of Baker, 
297 N.J. Super. 203,

212 (App. Div. 1997).            If a factual issue remains, the court

210 N.J. 557, 568 (2012) ("If the plain language is
clear, the court's task is complete."). Whether this represents
a shift in our jurisprudence, we need not say.             Compare
36 N.J.   at   568   (stating,   regarding  statutory
construction, that "when the probable intent is made manifest,
any language which may read literally to the contrary must give
way").   Our modern Court has not hesitated to look beyond the
apparently plain meaning of a statute when it "would lead to
absurd results," Harper, 
229 N.J. at 237, or violate "the
overall statutory scheme."     DiProspero v. Penn, 
183 N.J. 477,
493 (2005).    In any event, a stronger case can be made for
applying   the   "expansive   view"   to    interpreting  donative
instruments, because one is ascertaining the intent of a single
donor; and, unlike a Legislature that can correct its own
mistakes, a donor is often unable to correct or refine the
expression of his or her intent. See Restatement (Third) Prop.
§ 12.1, Reporter's Note 5 to cmt. d.

                                        14                             A-4004-15T1
 must conduct an evidentiary hearing.               Baker, 
297 N.J. Super. at

    "Once the evidence establishes the probable intent of the

testator, 'the court may not refuse to effectuate that intent by

indulging    in    a    merely   literal       reading   of   the    instrument.'"

186 N.J. at 335 (quoting Wilson, 
58 N.J. at 260).                              In

Wilson, the Court held, based on resort to extrinsic evidence,

that a testator's provision that a portion of his residuary

trust be dedicated to "philanthropic causes," meant "charitable

causes," a narrower category.             
58 N.J. at 264.

    Against       the    backdrop    of    this   substantial       authority,        we

cannot endorse the general statement in Gabrellian, 
372 N.J.

Super. at 443, upon which the trial court relied (and for which

we intend no criticism), that "[t]he doctrine of probable intent

is not applicable where the documents are clear on their face

and there is no failure of any bequest or provision."                     As noted,

a court may resort to extrinsic evidence to unveil ambiguity

that does not appear on the document's face.

    Nor     is    our   Court's     long-held      resistance       to   the    "plain

meaning rule" limited to cases where there is a failure of a

bequest.    For example, in Branigan, 
129 N.J. at 336, the Court

was faced not with a failure of a bequest; just a higher tax

bill under laws enacted after the will's execution.                       Given the

                                          15                                   A-4004-15T1
 testator's overarching intent to reduce tax liability, the Court

reformed the terms of a testamentary trust to "derive maximum

benefits under the federal estate tax laws."                              Id. at 335-36.

See   also    Payne,       
186 N.J.     at    338        (applying    probable      intent

doctrine to interpret a "just debts clause" to require estate to

pay off mortgage debt on two properties, where will expressly

referred only to one of them).

       We   should       not    tolerate     interpreting         a     trust    to    provide

benefits      the    settlor         did   not       intend.       "The     claim      of    an

unintended taker is an unjust claim."                        Restatement (Third) Prop.

§ 12.1 cmt. b.           In In re Estate of Bonardi, 
376 N.J. Super. 508,

517-18 (App. Div. 2005), the court relied on the trust's text,

and extrinsic evidence from the scrivener, to bar "acceleration

and termination of [a] trust [that] would have resulted in a

distribution        to    a    person      other      than     those    intended       by   the

testator."      The settlor's probable intent deserves vindication

to    bar    unintended         takers,     as       well    as   to    protect       intended


       In any event, the statement in Gabrellian was unnecessary

to its holding.           The testator's adult son sought reformation of

his father's will.              He was not suggesting that any particular

word or phrase was ambiguous and should be construed in his

favor.       Aside       from    a    $625,000        bequest,     the    will    left      the

                                                16                                    A-4004-15T1
 father's entire residuary estate, including business assets, to

his wife.         The son contended that, despite the will's clear

language, his father intended to leave him in control of the

father's business.         
372 N.J. Super. at 440.                 The son failed to

marshal evidence of his father's purported intent.                           The court

found, "There is nothing to support's [the son's] claim . . . to

retain control of his father's businesses."                    Id. at 443.


    Jack's principal argument depends on interpretation of the

trust's language.          He contends the simple word "grandchildren"

had a meaning personal to Violet, which excluded Jacoba's sons.

Alternatively, he contends that the scrivener made a mistake, by

failing   to      identify     the     grandchildren          Violet      intended    to

benefit; and the trust should be reformed to conform to that

intent.      In    assessing       both     arguments,    the      trial     court   was

obliged to consider the extrinsic evidence Jack presented.

    We    are     satisfied    that,      extending      to    Jack    all   favorable

inferences,          extrinsic            evidence        demonstrated               that

"grandchildren,"      as     the     term    was   used       in   this    trust,    was

ambiguous.      While "grandchildren" generally means "the children

of children," Jack presented evidence that Violet used the term

in a different sense, personal to her.                    "[A] latent ambiguity

arises if the donor's personal usage differs from the ordinary

                                            17                                 A-4004-15T1
 meaning of a term used in the text."              Restatement (Third) Prop.

§ 11.2 cmt. r; see also id., illus. 22 (where extrinsic evidence

demonstrated     that   testator     habitually     referred   to    his    actual

grandchildren     as    "cousins,"    will   that    left   property       to    "my

cousins" could be interpreted to benefit the grandchildren); id.

§ 14.10 cmt. d (although generally a "term of a relationship in

a class gift does not include relatives by marriage," contrary

intention may be demonstrated by "[e]xtrinsic evidence that the

donor habitually referred to his or her relatives by marriage as

his or her relatives").

      Jack has presented sufficient extrinsic evidence to support

a   conclusion   that    "grandchildren"     meant    not   all     children      of

Violet's children, but the children of her sons, who continued

to practice her religion, and not the sons of her daughter who

inter-married.     Having established ambiguity, Jack is obliged to

demonstrate by a preponderance of the evidence that his proposed

meaning is the one that fulfils Violet's intent.8                 He may do so

  Although the scrivener here stated he used "grandchildren" to
conform to Violet's personal sense of the term, use of a
professional scrivener may tend to counter evidence of personal
usage. Restatement (Third) Prop. § 11.2 cmt. r. Also, although
a scrivener may relate objective manifestations of a settlor's
intent, such as statements and conversations with the settlor,
In re Trust Created by Agreement, 
194 N.J. at 282, and the
scrivener's own "rationale for selecting certain language," id.
at 285, a scrivener may not offer a lay opinion about a
settlor's "unspoken thought processes," id. at 283.

                                       18                                  A-4004-15T1
 by marshaling extrinsic evidence.            Of course, Jared may counter

that with evidence of his own.9

     Even if the court as fact-finder is not persuaded that

"grandchildren"      excluded   Jacoba's      children,       Jack   should   be

allowed to establish that the scrivener made a mistake in using

the word, and in drafting the trust without identifying the four

grandchildren Violet intended to benefit.                That would require

reformation   of    the   trust.      Jack    would    bear    the   burden    of

demonstrating      that   general    intent    by     clear    and   convincing


     Given our disposition, we need not reach Jack's contention

N.J.S.A. 3B:31-31 and -32 of the NJUTC apply pursuant to

N.J.S.A. 3B:31-84.        Under prior law, as we have described, the

trial court was obliged to consider extrinsic evidence.

     Finally,   Jared's     cross-appeal      lacks    sufficient     merit   to

warrant discussion in a written opinion.            R. 2:11-3(e)(1)(E).

     Reversed and remanded.         We do not retain jurisdiction.

   For example, although Jack relies on Violet's explicit
exclusion of Jacoba's children in her will as evidence of a
similar intention in the trust, the omission of such an explicit
exclusion in the trust may instead reflect her intent to include
all the children of her children.

                                      19                               A-4004-15T1

Sunday, May 6, 2018

Form L-8 – Affidavit for Non-Real Estate Investments: Resident Decedents revised in 2018

Form L-8 – Affidavit for Non-Real Estate Investments: Resident Decedents revised in 2018
Use this form for release of: 
·       · New Jersey bank accounts; 
·       · Stock in New Jersey corporations; 
·       · Brokerage accounts; and 
·       · New Jersey investment bonds. 
This form cannot be used for real estate. 
For real estate investments, use Form L-9. 
This form can be completed by
o   · The executor; 
o   · Administrator; 
o   · The surviving Class A joint tenant (often a spouse or civil union partner); or 
o   · Class A “Payable On Death (POD)” beneficiary of the assets for which release is sought. 
PART I – ELIGIBLE BENEFICIARIES: Check the box or boxes corresponding to the type of beneficiary who is receiving the assets that will be listed in Part V. If at least one of the boxes does not apply, the L-8 cannot be used to release these assets. Qualified civil union partners and domestic partners must provide a legal certificate to document their status. 
The following are considered Class A beneficiaries: 
·       · Surviving spouse; 
·       · Surviving civil union partner when a decedent’s death is on or after February 19, 2007; 
·       · Surviving domestic partner when a decedent’s death is on or after July 10, 2004; 
·       · Child, stepchild, legally adopted child, or issue of any child or legally adopted child (includes a grandchild and a great grandchild but not a step-grandchild or a step great-grandchild); 
·       · Parent and /or grandparent.
Note: You cannot use this form to release any asset passing to a beneficiary other than the Class A beneficiaries 
specifically listed in Part I.
For example, the following people cannot use this form (and must file a return to receive waivers): 
·       · Sisters and brothers of the decedent; 
·       · Sons-in-law or daughters-in-law of the decedent; 
·       · Nieces and nephews, aunts and uncles; 
·       · Ex-spouses; 
·       · Mutually acknowledged children; 
·       · Step-grandchildren and charities. 
PART II – SUCCESSION:Check the box that shows how the assets pass to the beneficiary. 
·       · Check Box aif the assets on the form pass directly to the beneficiary by operation of law. This means 
they were jointly held, POD, or Transfer on Death (TOD). (A copy of the will is not needed); 
·       · Check Box bif the will states that these specific assets reported on the L-8 form pass to a particular named beneficiary. (Attach a copy of the will); 
·       · Check Box cif there was no will (intestate) and all the beneficiaries in the entire estate are Class A beneficiaries as listed in Part I; or 
·       · Check Box cif there was a will (testate), but there were no specific bequests and all the beneficiaries in the entire estate are one of the Class A beneficiaries listed in Part I (attach a copy of the will). 
Note: If at least one of the boxes does not apply, the L-8 cannot be used to release these assets. 
PART III – TRUSTS/DISCLAIMERS:If any of the assets you wish to release pass into or through a trust, where the trust decides how the assets are distributed, you cannot use the L-8. Trusts can be set up by decedents either in their will, or separately from the will. For the purposes of the L-8, it is not generally considered a “trust” when there is a bequest in the will to a minor (who is a Class “A”) to be held “in trust” until he/she reaches a specific age. In all other cases, a full return must be filed with the Inheritance Tax Branch, even if the assets all appear to be passing to Class A beneficiaries. 
NOTE: Assets that are owned by or in the name of a trust do not require a waiver or L-8, but must still be reported on any return filed. 
PART IV – ESTATE TAX:This section determines whether the estate may be required to pay New Jersey Estate Tax. You must be able to answer “YES” to either a), b), or c) to qualify to use this form. If the decedent died on or after January 1, 2017, but before January 1, 2018, his/her entire taxable estate must be under $2 million. If the date of death was before January 1, 2017, the entire taxable estate must be under $675,000. Even if you qualify to use this form, a return is still required if the gross estate is over $675,000. If the decedent died on or after January 1, 2018, then there is no Estate Tax. 
PART V – PROPERTY: List all the assets in this institution for which you are requesting a release. If this is a bank, list each account in this bank separately. Follow the column headings for each asset. Under “How held/Registered,” you may enter “NOD” (Name of Decedent) if the account was in the name of the decedent alone. If it was Paid on Death (POD) to a person, enter “POD to” and the person or persons’ names (e.g., POD Jane Doe and John Doe). If it was jointly held, enter “NOD and/or” the beneficiary’s name. 
PART VI – BENEFICIARIES: List the name of each beneficiary and his/her relationship to the decedent. The relationship must be one of the Class A beneficiaries listed in Part I of the L-8. 
NOTE: “Executor,” “Estate,” and “Beneficiary” are not correct relations to the decedent in this column. You must use terms such as “Child,” “Spouse,” or “Grandchild.” 
SIGNATURE: This form is an affidavitand must be signed by the executor, administrator, or beneficiary, and the signature must be notarized
PART VII – RELEASING INSTITUTION: A representative of the institution releasing the funds must verify that all questions have been answered and that the beneficiaries reported are allowed per Part I, before signing the form and releasing any assets. If you have any question as to whether you are permitted to release assets, please call the Inheritance Tax general information number at (609) 292-5033 and ask to speak to an Information Section representative. 

Tuesday, May 1, 2018

E539 1. Kenneth Vercammen was selected to the 2018 Super Lawyers NJ list. 2. No good faith exception for errors in search warrant for apartment. 3. If DWI plea vacated with PCR, no criminal DWS. 4. May 1 Sayreville Senior Center 5. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and Professionals involved in Probate 6. May charity Running Races Charity 7. Memorial Day events 8. Kenneth Vercammen on News 12

Kenneth Vercammen, Attorney at Law
April 24, 2018
1.  Kenneth Vercammen was selected to the 2018 Super Lawyers NJ list.
2.  No good faith exception for errors in search warrant for apartment.
3.  If DWI plea vacated with PCR, no criminal DWS.
4.  May 1 Sayreville Senior Center
5.  Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and Professionals involved in Probate
6.  May charity Running Races Charity
7.  Memorial Day events
8.  Kenneth Vercammen on News 12

1. Kenneth Vercammen was selected to the 2018 Super Lawyers NJ list. The Super Lawyers list issued by Thomson Reuters, which manages West Publishing USA.
A description of the selection methodology can be found at No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
     Also, Kenneth Vercammen has been qualified by the NJ Supreme Court's the Board on Attorney Certification to be recognized as one of the few Municipal Court Law Attorneys.

2. No good faith exception for errors in search warrant for apartment. State v Boone (A-3-16)
   Because the warrant affidavit failed to provide specific information as to why defendant's apartment and not other units should be searched, the warrant application was deficient.
Here, no independent documentary evidence, such as a voting record, utility bill, or lease, was offered to corroborate Boone's address. No neighbor, informant, or controlled transaction demonstrated that Boone lived in Unit 4A. Police failed to provide the issuing judge a basis of knowledge from which to conclude that contraband would be found in the particular apartment. That is true regardless of whether the warrant application provided a basis for Boone's arrest because, as noted, probable cause to arrest a suspect is not synonymous with probable cause to search that suspect's apartment. Police lacked the facts important in Keyes, namely a reliable informant who could identify where Boone lived. Police here listed Boone's apartment unit as the targeted property in a conclusory manner, without any evidential basis as to how they knew that specific unit in a thirty-unit building contained contraband. The Court recognizes that the error here was likely an innocent oversight by the police. However, because New Jersey does not recognize an officer's good faith alone as an exception to the warrant requirement, the error demands reversal.
         Because the State's warrant application did not include specific evidence as to why a judge should issue a search warrant for a specific apartment unit, the search warrant issued on the basis of that application was invalid. And, because the police search of Unit 4A was not supported by a valid warrant or justified by an exception to the warrant requirement, the search was unconstitutional. Therefore, the Court suppresses all evidence seized from Boone's apartment. The Court emphasizes that judges issuing search warrants must scrutinize the warrant application and tie specific evidence to the persons, property, or items the State seeks to search. Without that specificity and connection to the facts, the application must fail.

3. If DWI plea vacated with PCR, no criminal DWS.  State v Faison A-3629-15T4
     In this case, the court reversed defendant's conviction for operating a motor vehicle while his license was suspended for a second or subsequent driving while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). While defendant's license was suspended for a second DWI conviction when the police stopped him, before trial he successfully petitioned for post-conviction relief (PCR). The order granting PCR vacated his prior DWI convictions and remanded both matters to the municipal court for new trials. On remand, the municipal court dismissed one DWI charge, and defendant pled guilty to the other.

         As a result of defendant's PCR and remand proceedings, at the time of his trial for violating N.J.S.A. 2C:40-26(b), he had only one prior DWI conviction. Accordingly, the State could not prove an element of the crime charged - a second DWI conviction - a prerequisite to the mandatory 180-day incarceration period imposed by N.J.S.A. 2C:40-26(b) and (c).

4.  May 1 Sayreville Senior Center
Wills, Estate Planning & Probate Seminar- Last seminar of the Spring at 10am
423 Main Street                                                                    
Sayreville NJ 08872                                                              
     Open to the public. You do not need to be a resident.

SPEAKER: Kenneth Vercammen, Esq. Edison, (Author- ABA's "Wills and Estate Administration book")
       Main Topics:
1. NJ Estate Tax eliminated on Estates as of January 1, 2018 & Veterans Tax credit
2. The 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys                                                                     
5. Living Will                                                                                   
6. Administering the Estate/ Probate/Surrogate

5. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and Professionals involved in Probate
May 7, 2018 5:00 PM- 9:00 PM NJ Law Center
   Includes a 240 + page book with sample forms, documents & checklists! and light dinner.
-WILLIAM P. ISELE, ESQ. Past NJ Ombudsman for the Elderly
-MARTIN A. SPIGNER, ESQ. Law Office of Martin A. Spigner, Cranbury
-KENNETH A. VERCAMMEN, ESQ. Co-Chair, ABA Estate Planning & Probate Committee, Past GP Solo Section Attorney of the Year
Past NJSBA GP Solo of the Year Edison, NJ
         Fees between $160-$190. More details contact New Jersey Institute for Continuing Legal Education The non-profit continuing education service of The New Jersey State Bar Association Constitution Square, New Brunswick, NJ 08901-1520  
Phone: 732-214-8500.
        Law students can attend for free, without material

6.  May charity Running Races Charity

May 5, 2018 Farmlands bike This family-friendly event has marked routes in a variety of distances, from a leisurely 15,25,35 mile jaunt to the ambitious 50 mile, metric (62.5 miles) and century (100 miles)
Central Jersey Bike Club Middletown

May 6, 2018 Highland Park 5k Run in the Park   9am Sunday RVRR is volunteer group

SAT, MAY 19, 2018 Follow Me 5K Run MILLTOWN, NJ   8:30am & 1 mile walk American Legion

May 20, 2018 NJ Sharing Network 5k Long Branch 8:30 Sunday

May 25, 2018 "Legends of Belmar" Friday night of Memorial Day - "Start of Summer Happy Hour with the Legends of Belmar" Join Ken V and friends the Friday night before Spring Lake 5 race for "Legends Night" in Belmar at D'Jais 5:30 free food Ocean Ave. Belmar, 7:30 Bar Anticipation 16th Ave not a race, just social event. The greats of Belmar beach volleyball, friends of Holme band and the beach start Memorial Day at D'Jais & Bar A. Give out American Flag stickers to lucky customers to show your support for USA and those who served. Marty P, John C. Jim W, Chris K, maybe even Daniel-son
May 26, 2018 Spring Lake Five Mile Run    Saturday    8:30am then free food at Bar A.

5/27/18 Navesink 1.2 mile swim   8:15 AM

6/2/18   Elk's Flag Day Parade, Wildwood
6/2/18 RVRR Towpath Training run benefit Cancer Institute & post run picnic

7. Memorial Day events

May 27, 2018 Edison Memorial Day Parade 12 noon Along Plainfield Avenue: Starting from Edison Library Division and ending at American Legion Post 435 Father & Son on Oakland Avenue for refreshments.
       Son & grandsons of Veterans should join the Sons of American Legion
S.A.L. Membership Eligibility Requirements
All male descendants, adopted sons and stepsons of members of the American Legion, and such male descendants of veterans who died in Service during World I, World War II, the Korean War, the Vietnam War, Lebanon, Grenada, Panama, the Persian Gulf War and the War on Terrorism, during the delimiting periods set forth in Article IV, Section 1, of the National Constitution of The American Legion, or who died subsequent to their honorable discharge from such service, shall be eligible for Membership in the Sons of The American Legion. Ken Vercammen is a member of the Sons of American Legion in Edison. Dues only $20.00 per year. Hall available for rental
American Legion Father & Son Post 435
43 Oakland Ave,
Edison, NJ 08817
Phone: (732) 985-9768

5/28/18 North Brunswick Memorial Day 5k 8:30am North Brunswick Community Park Route 130 South
May 28, 2018 METUCHEN AREA CHAMBER OF COMMERCE Annual Parade & Ceremony in honor of MEMORIAL DAY, Monday, -A Century of Service, Honoring our American Legion Post 65 & Boy Scout Troop 14 with Grand Marshals CW4 Isabella Giordano, U.S. Navy (Ret.) Verna Martin, U.S. Army (Ret.)
   New PARADE route at 10am-From Brunswick Avenue & Edgar School, proceeding north on Main Street to New Street, to end at the Plaza for the CEREMONY at 11:30am

8.  Ken Vercammen was on News12 NJ TV again.
Kane in Your Corner. Odds of pothole damage reimbursement 'slim', discussing municipality liability

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All materials Copyright 2018. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
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