Elder Law & Estate Administration for Attorneys Part 1.mov

Defenses to Speeding

Driving while suspended

Wills And Probate

NJSA 3B:3-14

NJSA 3B:3-14 Revocation of Probate and Non-Probate Transfers by Divorce or Annulment; Revival by Re-Marriage to Former Spouse

3B:3-14 Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse. 3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse. a.Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment: (1)revokes any revocable: (a)dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individuals former spouse; (b) provision in a governing instrument conferring a general or special power of appointment on the divorced individuals former spouse, or on a relative of the divorced individuals former spouse; and (c)nomination in a governing instrument of a divorced individuals former spouse or a relative of the divorced individuals former spouse to serve in any fiduciary or representative capacity; and (2)severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common. In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individuals remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance. A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. b.For purposes of this section: (1) "divorce or annulment" means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment; (3) "divorced individual "includes an individual whose marriage has been annulled; and (4) "relative of the divorced individuals former spouse" means an individual who is related to the divorced individuals former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity. c.This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section. d.A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section. L.1981, c.405, s.3B:3-14, eff. May 1, 1982; amended 2004, c.132, s.17; 2005, c.160, s.4.

IN THE MATTER OF THE ESTATE OF VIVIAN FASSETT

                                                                                     SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO.  A-3310-10T3

IN THE MATTER OF THE ESTATE OF

VIVIAN FASSETT.

__________________________________

	March 2, 2012

 

Argued:  February 16, 2012 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Ocean County, Docket No. 188933 (consolidated with L-126-11 and C-2-11).

Thomas Bolling, appellant, argued the cause pro se.

Cheryl Capers, respondent, argued the cause pro se.

Marie Hardy, respondent, argued the cause pro se.

PER CURIAM

            On December 6, 2010, the Surrogate of Ocean County admitted to probate the last will and testament of Vivian Fassett and issued letters testamentary to Cheryl Capers and Marie Hardy as co-executrixes of the Fassett estate.  Thomas Bolling, a brother of Fassett, filed a complaint seeking several forms of relief, including an order setting aside the will, an order barring disposition of Fassett's remains as directed in her will, an accounting, and money damages.  Bolling appeals from the March 1, 2011 order dismissing the complaint, directing Capers and Hardy to proceed with their duties as executrixes, authorizing Capers and Hardy to proceed with the disposition of decedent's remains in accordance with her instructions, and ordering Capers and Hardy to provide an accounting.[1]

            On appeal, Bolling argues that the trial court erred in upholding the will and authorizing the executrixes to proceed with the funeral arrangements because the will was fraudulent and decedent was under undue influence when she signed the will.  Due to our denial of Bolling's application to stay disposition of decedent's remains, this appeal is limited to his contentions that the October 30, 2010 will executed by Fassett is the product of undue influence and she was not competent to execute the will at that time.  Capacity to make a will and undue influence are separate concepts governed by different legal principles and will be discussed in turn.

After a will has "been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part."  In re Estate of Stockdale, 196 N.J. 275, 302 (2008) (citing R. 4:85-1).  In an attack against the validity of a will, "[t]he legal presumption is that the testator was of sound mind and competent when he executed the will."  In re Will of Livingston, 5 N.J. 65, 71 (1950).  Generally, "'the law requires only a very low degree of mental capacity for one executing a will.'"  In re Will of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992), (quoting In re Will of Rasnick, 77 N.J. Super. 380, 394 (Cty. Ct. 1962)), certif. denied, 133 N.J. 432 (1993).  The trial court must determine whether the testator comprehended the property of which she would dispose, the recipients of her property, the act of executing the will, and the relation among these factors.  Will of Livingston, supra, 5 N.J. at 73.

A will may be contrary to the principles of justice and humanity; its provisions may be shockingly unnatural and extremely unfair, nevertheless if it appears to have been made by a person of sufficient age to be competent to make a will and also to be the free and unconstrained product of a sound mind, the courts are bound to uphold it.

[In re Estate of Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952), certif. denied, 11 N.J. 211 (1953).]

            Bolling, as the party who challenges the capacity of his sister to make a will, has the burden of proof to overcome the presumption that his sister had the capacity to execute the October 30, 2010 will.  That she died within thirty days of executing the will is not dispositive of her capacity on October 30.  Bolling had the obligation to adduce competent evidence that his sister did not comprehend the nature and scope of her assets, the identity of the persons to receive these assets, the fact that she was executing a will, and that the document would distribute those assets to the persons she had identified.  Competent evidence is evidence that is trustworthy, reliable, and probative of the fact or facts at issue and admissible in court in accordance with the Rules of Evidence.  See Calabro v. Campbell Soup Co., 244 N.J. Super. 149, 169 (App. Div. 1990) (Competent evidence is evidence that is "'[l]egally qualified or adequate.'" (quoting Webster's Ninth New Collegiate Dictionary at 268 (1983))), aff'd, 126 N.J. 278 (1991).

            Measured by this standard, Bolling did not carry his burden.  He submitted to the Probate Judge various documents that provided information about his sister's condition at various points in time.  For example, a document dated August 26, 2010, reported that his sister "has lung ca[ncer] on heavy meds & confused."  The document, however, was not authenticated and also recited her condition two months before she executed the October 30, 2010 will.  Significantly, the record before the Probate Judge contained no properly authenticated documentation or other admissible evidence of her testamentary capacity on October 30, 2010.

A will may be overturned, however, if tainted by "undue influence."  Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (1981).  Not all influence, however, amounts to undue influence.  Will of Livingston, supra, 5 N.J. at 73.  "Persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice."  Ibid.  Rather, the influence must amount to a "mental, moral or physical exertion which has destroyed the free agency of a testator by preventing the testator from following the dictates of [her] own mind and will and accepting instead the domination and influence of another."   Ibid.  Generally, "[t]he burden of proving undue influence is upon the person asserting it and it must be clearly established."  Id. at 71; see also Estate of Hoover, supra, 21 N.J. Super. at 325 (undue influence "must be sustained by clear and convincing evidence.").

"[O]nce a presumption of undue influence has been established[,] the burden of proof shifts to the proponent of the will, who must, under normal circumstances, overcome that presumption by a preponderance of the evidence."  Haynes, supra, 87 N.J. at 177-78.  Hence, "if the will benefits one who stood in a confidential relationship to the testator and if there are additional 'suspicious' circumstances, the burden shifts to the party who stood in that relationship to the testator."  Estate of Stockdale, supra, 196 N.J. at 303.  The suspicious circumstances may be slight.  Ibid. 

            Here, too, the information submitted by Bolling failed to carry the requisite burden to establish undue influence by anyone, let alone require a shift of the burden of proof to Capers and Hardy, the proponents of the will.

            It is also noteworthy that the judge did not consider Bolling's challenge on the papers.  Bolling, Capers and Hardy appeared before him twice.  At the first hearing, another of decedent's brothers appeared by telephone.  At the second hearing, Anetha Ginwright, the mother of Fassett, attended the hearing.  Judge Peterson had the opportunity to review the documents submitted and the sworn testimony of Bolling, his brother, Capers, Hardy, and Ginwright.  The judge's findings on the issues of testamentary capacity and undue influence are entitled to great weight because he had the opportunity to see and hear the witnesses and form an opinion about the credibility of their testimony.  Will of Livingston, supra, 5 N.J. at 78.  We will not disturb these findings unless they are manifestly unsupported by or inconsistent with the competent evidence submitted at trial.  Will of Liebl, supra, 260 N.J. Super. at 524.  Our review of the is record reveals no basis to disturb the March 1, 2011 order.

            Affirmed.

---

[1] Bolling sought a stay pending appeal of that part of the March 1, 2011 order permitting Capers and Hardy to proceed with the cremation of decedent.  By order dated March 10, 2011, we denied a stay.

Removing Executor from estate

Contact Kenneth Vercammen, Esq.

732-572-0500

2053 Woodbridge Ave.

Edison, NJ 08817

http://www.njlaws.com/removing_the_executor_of_an_estate.html?id=786&a=

Under New Jersey Law, the people selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.

The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings.

KENNETH VERCAMMEN

Attorney at Law

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500