IS YOUR FAMILY FIGHTING OVER A WILL OR A TRUST?
INTERESTED IN KNOWING HOW TO CONTEST A WILL OR TRUST?
SUSPECT UNDUE INFLUENCE OR WRONGDOING BY A BENEFICIARY WHO GOT MORE THAN THEIR FAIR SHARE OF AN ESTATE?
DO YOU BELIEVE THE DECEDENT WAS NOT COMPETENT WHEN HE OR SHE SIGNED THEIR LAST WILL, TRUST, OR POWER OF ATTORNEY?
IS THE LAST WILL AND/OR TRUST CONFUSING, CONTRADICTORY, VAGUE AND/OR AMBIGUOUS SUCH THAT AN INTERPRETATION IS NECESSARY?
ARE YOU A SURVIVING SPOUSE WHO HAS BEEN DISINHERITED? DOES THE LAST WILL/TRUST VIOLATE THE TERMS OF YOUR DIVORCE AND/OR PROPERTY SETTLEMENT AGREEMENT?
ARE YOU A CHILD WHO HAS BEEN DISINHERITED OR GIVEN LESS OF THE ESTATE THAN A SIBLING UNDER YOUR PARENT’S WILL OR TRUST?
DID YOUR MOM OR DAD’S SECOND SPOUSE (STEP-PARENT) MANAGE TO CUT YOU OUT OF THE ESTATE?
IS AN EXECUTOR OR ADMINISTRATOR ABUSING THEIR AUTHORITY AND/OR IGNORING YOU?
ARE YOU AN EXECUTOR OR ADMINISTRATOR DEALING WITH A BENEFICIARY FROM HELL?
DID THE POWER OF ATTORNEY, FAMILY MEMBER, OR SOMEONE ELSE CHANGE A BENEFICIARY DESIGNATION WRONGFULLY OR MISUSE MONEY? WAS THERE THEFT FROM YOUR LOVED ONE?
WAS A LOVED ONE’S WILL OR TRUST CHANGED SUDDENLY AFTER MANY YEARS?
Written by New Jersey Probate Estate Litigation Attorney Fredrick P. Niemann, Esq.
It’s an old tale. Ever since ancient laws were swept away by the right of everyone to make a Will, heirs, and beneficiaries have objected to even the best-made Wills and Trusts, often with good reason(s). In most cases someone has or someone is doing someone else “dirty”. Conflicts among family members, heirs, and executors can arise before or during the probate of an estate, even when the Last Will or Trust seems clear. But can you do anything? What are your rights? Relax, you’re at the right place. I’m going to explain and help you understand will contests, trust, and probate litigation in simple, plain English.
Does NJ Law Guarantee an Inheritance?
Generally speaking, the short answer to this question is no, with one exception that I will disclose at the end of this paragraph. “Everyone has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else.” The exception I referenced earlier is a surviving spouse entitled to receive a statutory percentage of their deceased spouse’s estate under certain circumstances.
It is possible to legally set aside a Will or Trust. A person contesting a Last Will & Testament must prove that at the time the document or trust was signed, the deceased lacked mental capacity, or that the Will or Trust was signed as the result of undue influence, fraud or duress. Also, some Wills or Trusts are invalid because they were not properly executed or constructed. For example, Wills must be signed before two witnesses and notarized, except for holographic Wills written in the handwriting of the testator (a testator is a person who creates their Will). Another example of a legally defective Will is if the witnesses signed the will after the fact, meaning they did not actually see the decedent sign the Will. In such a case, the Will may be invalidated.
Probate & Estate Litigation in New Jersey
Is it Possible to Overturn a Will During the Testator’s Lifetime?
What if someone makes a Will while alive but lacks being of ‘sound mind’ or suffers from other infirmities? Can a court decide that their Will is not legal and therefore invalid?
The answer is maybe but not likely. One of the requirements of a Will is that it be made by a person “of sound mind.” Most of the time a loved one’s Will is produced after they have passed away. If a person has made his or her Will while lacking mental capacity and understanding, it is possible to overturn that Will provided the testator’s lack of or diminished capacity can be proven. A Will made by a person who is not of sound mind is not valid. This is true whether the testator is still alive or has died. Sometimes, a person that has been judicially declared to be mentally incapacitated makes a Will while incapacitated. This will usually signal elder abuse since an incapacitated person generally does not have the ability to comprehend a document as sophisticated as a Will. Too often, family members who learn of a surprise Will assume that they must wait until the testator has passed away to ask a court to invalidate the suspect Will.
New Jersey courts have addressed this issue only a handful of times. If an incapacitated person – namely a person that a court has determined lacks the ability to make decisions for themself – if he or she has made a Will while incapacitated, a court may set that Will aside if it is in the best interests of the incapacitated testator. This is only possible if the person making the Will is deemed legally incapacitated.
If the person making the Will has not been found legally incapacitated, a pre-death challenge to a Will is disfavored by the courts. New Jersey’s public policy presumes that adults are competent to handle their own affairs. New Jersey, therefore, assumes that its residents should be able to make, correct, or amend their Last Will freely or even revoke it outright at any timie before death.
When a family member or close friend has strong doubts that the testator understood what he or she was doing in making a gift or signing a Will, but the testator has not been formally adjudged incapacitated, it is possible to ask the court to look into both issues at the same time. The topic of guardianship in New Jersey is outside the scope of this article, but when a person has made a Will that does not reflect his or her true intentions because it is the result of elder abuse, undue influence, or financial exploitation, that person probably requires the appointment of a guardian to prevent future abuse or exploitation. A guardian is judicially given the authority to act in the best interests of the incapacitated person. If a court makes a determination that someone needs a guardian because they are incapacitated, the court may also set aside a Will at the same time if the Will is not in the person’s best interests.
When a court reviews whether or not the Will of an incapacitated person is in their “best interest,” the actual analysis the court uses is based on the 1972 trial-level case In re Trott. In this case, Pattie Trott was an elderly woman whose guardian designed an estate plan to achieve a tremendous tax savings for her heirs and made certain gifts on her behalf during her lifetime. In that case, the court determined that Ms. Trott’s best interests were to have her assets go to her family as gifts rather than the government in taxes. In Trott, the benefits to her estate were obvious. In most cases, it is disputable what is in a person’s “best efforts” when they cannot speak for themselves. Generally, a Will that drastically departs from a prior Will or a Will that excludes the testator’s loved ones (as two common examples), tend to be subject to invalidation according to the “best interests” standard.
In many Will contests, family members have had suspicions that someone close to the decedent during his or her lifetime was influencing the testamentary process. These families are often surprised – and disheartened – to learn after death that they could have disrupted this outcome during the testator’s lifetime. So remember this, where a person is incapacitated or suspected of being incapacitated, there is a remedy in the courts if it is approached in the right way. Hanlon Niemann & Wright, P.C., has handled these types of cases for years.
Is it Time to Take Action? Getting the Run Around from an Executor, Trustee, Fiduciary?
Are you a beneficiary who feels they are getting the runaround from an executor, trustee or the personal representative of the estate? They aren’t answering your questions, returning your calls and/or your letters, or haven’t sent you the money you are entitled to. Often times there are reasons for a delay in the administration of an estate caused by various circumstances discovered after death such as (for example) the testamentary capacity of the deceased to sign a Will is disputed, suspicious actions taken by a previous power of attorney (including the financial abuse/misuse of the power of attorney), undue influence, conflict(s) of interest and self-dealing. Often, however, executors just do nothing or make excuses for their poor performance.
You may be hesitant to act but you know you need help. You need the help of an experienced probate, trust and estate litigation attorney in New Jersey who knows estate, trust and probate law. You also need a seasoned trial attorney to deal with difficult family members or an unreasonable executor/trustee, creditor or beneficiaries. At Hanlon Niemann & Wright, we don’t litigate just to litigate. We first try to mediate the disagreement in a practical and responsible way, preferring a voluntary solution to a probate dispute and will contest case consistent with our client’s rights, goals and instructions. Fredrick P. Niemann, Esq. and the attorneys at Hanlon Niemann & Wright represent clients throughout N.J. in tough probate and estate disputes. We’re experienced probate trial attorneys with an extensive background in probate and trust law and litigation. We have been involved in many significant cases, just like yours.
TESTIMONIAL
Contesting a will for Undue Influence is a very complicated endeavor. Our dream team of lawyers, Fred Niemann, Christopher Hanlon, and Christopher Balioni, along with their amazing paralegals, Valarie, Annette and Lia went above and beyond our expectations in representing us and achieving the outcome we desired! It was a long, brutal fight, but they never gave up and we were victorious! We could not be happier with how they represented us and the ultimate result. They were patient, understanding and fair, on top of being highly knowledgeable and just all around great people! Look no further in your search for hardworking, honest lawyers. You won’t be disappointed!
– Cindy Groman
Watch Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright introduce you to the Firm’s philosophy in a NJ Will Contest / Probate Dispute in this interesting and informative video.
Introduction to New Jersey Probate Laws
Do You Need an Attorney to Review a Will or a Trust and Explain its Provisions to You in Simple English Before Filing a Lawsuit?
A will contest is the most commonly recognized lawsuit in estate probate litigation.
To contest a Will, you need to find the Will and then it must be evaluated. There is no such thing as a central Will registry where all signed Wills are filed as a public record prior to death. But once a Will has been probated with the County Surrogate’s office, “interested persons and their representatives” may conduct a search of that registry. New Jersey probate laws define an “interested person(s)” as “children, spouses, potential heirs, devisees, fiduciaries, creditors, beneficiaries, and “others” having a property right or claim against a Trust, Will, or the estate of a decedent which may be affected by a legal proceeding”.
BREACH OF FIDUCIARY DUTY BY A NJ EXECUTOR OR NJ TRUSTEE
Executors and trustees owe a fiduciary duty to the heirs and beneficiaries of an estate. A fiduciary duty means a duty to act in good faith and fair dealing with a standard of competency and due diligence. A fiduciary must always consider the best interests of the trust or estate before his or her personal interests. When an executor or trustee profits from his or her position, other than earning agreed-upon compensation or a statutory commission(s), they may have breached their fiduciary duty. A failure to safeguard trust or estate assets which causes a loss to the heirs and beneficiaries of the estate may also be a breach of fiduciary duty. Heirs and beneficiaries damaged as a result of fiduciary action(s) can file a legal proceeding against the executor or trustee. Under some circumstances, the executor or trustee can be held personally liable for the economic loss.
Understanding the Ins and Outs of an Estate Accounting
There has been a recent unpublished opinion by a New Jersey trial court allowing an action by an heir for “the waste or destruction of his inheritance, by other beneficiaries and third parties that occurred before and after the death of the owner. Such a claim is significant because when successful, New Jersey law allows treble damages against the party causing the loss of estate value.
COMPELLING AN ACCOUNTING
Trustees and executors have a duty to keep all estate assets separate and identifiable, and to account to the beneficiaries for all monies coming into the estate or trust and going out. For an estate under probate, the court will not allow probate to end until a satisfactory accounting is complete. If the trustee of a trust fails to provide a proper accounting, the beneficiaries can file a petition seeking a court order compelling the executor(s) or trustee(s) to do an accounting. A trustee(s) who fails to properly account for their actions may be removed by the court.
Initial Steps to Compel Accounting
- Establish a Basis for the Request:
To compel an accounting, you should offer a persuasive reason for your request. Common grounds include:
– Lack of communication or reporting by the fiduciary.
– Evidence of mismanagement, theft, damage to estate assets, inattention to the affairs of the estate, and failure to uphold fiduciary duties.
– Requests from multiple beneficiaries indicating widespread concern. - Review Existing Documentation:
Before taking legal action, it’s prudent to obtain possession (when feasible) of any existing documents related to the estate, including:
– The Last Will and Testament.
– Surrogate filings and court documents involving the probate process.
– Financial statements or informal reports, if any, provided by the executor or estate administrator. - Demanding a Request for Accounting:
You may start by sending a written demand for an accounting to the executor or administrator. This document should specify:
– The date by which you expect a response.
– The specific information you require, such as detailed records of income, expenses, distributions, and any transactions involving estate assets.
If the executor fails to respond or provides inadequate information, you may then move forward with litigation. Here’s a general outline of the key steps involved:
The court will order an executor or trustee to account if they do not do so, unless all beneficiaries agree to waive such an accounting. If the executor or trustee has failed to keep records, or if they have failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed.
CONTRACT TO MAKE A WILL: IS IT ENFORCEABLE IN NJ?
Frequently, people make promises they never keep. Some of these promises relate to Wills and Trusts, such as when a parent verbally promises to leave all or a portion of their estate to a child upon their death in consideration of caring for them in their old age. When a promise isn’t fulfilled, (sometimes) it is possible in NJ to enforce what the courts call a “Contract to Make a Will.” (See my example below).
As a rule, agreements to make a bequest (gift) of property after death must be in writing. If it is not in writing, such an agreement(s) are unenforceable. There is, however, one exception to this rule and that is where the person to whom the promise was made changed his or her position in reliance of the promise and suffered a detriment as a result when the promise was not fulfilled. This person can sue for specific performance of the verbal promise.
Here is an example to illustrate when a Breach of Contract to Make a Will in NJ would apply:
Mom promises to one of her four daughters that if she moves in and cares for her at home for the rest of her life, that daughter will inherit the home. The daughter agrees. She gives up her job, sells her home and takes care of her mom around the clock for two years, giving up opportunities for employment and a social life. But after Mom’s death, the daughter discovers that her mother’s will divides the entire estate, including the mother’s home between all four children. In this case, the daughter may have a legal claim against her mother’s estate for a breach of contract.
How to Make a Case of Tortious Interference With an Expected Inheritance
Tortious Interference With an Expected Inheritance
Although there has been a national trend toward recognizing tortious interference with an expected inheritance in the last decade, New Jersey has been slow to embrace the claim and as a result, relatively little precedent exists in New Jersey. But this author likes the basis of the claim and has and will continue to assert it in the future under the right facts.
Basically, the claim alleges that someone intentionally perpetrated fraud, duress or other tortious means to prevent another person or organization from receiving an inheritance or gift that he or she would otherwise have received but for the fraud etc. The person found to have caused the loss is subject to liability to all beneficiaries for the loss of the prospective inheritance or gift.
A plaintiff must prove with reasonable certainty that he or she would have received the inheritance but for the defendant’s tortious acts. This proof must show a “high degree of probability.” A plaintiff must also show economic injury as a result of the defendant’s tortious conduct. Most often, the economic loss (commonly called damages) is measured by the value of the decedent’s estate that would have been inherited but was not because of the misbehavior of a third party.
Punitive damages and damages for emotional distress may also be available. However, damages for emotional distress have only been awarded against the person(s) who caused the distress and not against the decedent’s estate.
Fredrick P. Niemann Esq.
Contact us today if you need legal advice, direction and/or a second opinion about whether you should or should not contest a Last Will or Trust. I invite you to reach out to me today. You’re just a telephone call away from speaking with a knowledgeable trust and estate attorney, please call Fredrick P. Niemann toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com to set up an office consultation at your convenience. I welcome your calls and inquiries and you’ll find me or other members of the firm easy to talk to and very approachable.
Fredrick P. Niemann, Esq. to Lead 2023 NAELA Conference
Fredrick P. Niemann of Hanlon Niemann & Wright was selected to Chair the 2023 New Jersey NAELA Elder Law Program on April 19, 2023 at the Wind Creek Hotel and Convention Center in Bethlehem PA. NAELA represents the National Association of Elder Law Attorneys. It has an active New Jersey Chapter wherein the elite of NJ Elder Law Attorneys meet, interact and discuss a wide range of topics impacting the lives of NJ elderly residents and the attorneys who represent them.
Mercer County Chapter of the New Jersey Society of CPAs
Fredrick P. Niemann spoke before the State Society of CPAs Mercer County Chapter about Estate Planning and Asset Protection Planning for individuals and families. Topics addressed during the 4-hour seminar included hospice planning and asset protection, Veterans Aid & Attendance, planning using a Power of Attorney, Living Will and Healthcare Directive. Attendees at the seminar were eligible to receive 4 hours of professional CEU credits from the State Society.
Wills Contest Attorneys serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County