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 OR MISUSE MONEY WRONGFULLY? 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 times with good reasons. 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 will contests and probate litigation to you in simple, plain English. FIRST OFF, UNDERSTAND THIS SIMPLE PROPOSITION:
Does NJ Law Guarantee an Inheritance?
“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.”
It is possible, however, to set aside a will or trust. A person contesting an estate must prove that at the time the Last Will or trust was signed, the deceased lacked mental capacity, or that the will or trust was procured 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 the person whose will it is). Another example is if the witnesses signed the will after the fact and did not actually see the decedent sign the will, then the will may be thrown out as invalid.
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 calls, or your letters, or haven’t sent you the money you are entitled to. Often times there are reasons for a delay in estate administration. Delays can be caused by various questionable circumstances that are discovered after death such as the testamentary capacity of the deceased to sign a will, suspicious activities by a previous power of attorney including the misuse of the power of attorney by the person appointed, undue influence, conflict(s) of interest and self dealing. Often times, however, executors just do nothing or make excuses for their poor performance.
You may be hesitant to take action 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’ll first try to mediate the disagreement in a practical and responsible way, preferring the mediation of probate disputes and will contest cases 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, many just like yours.
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 first have a will, and then it has to be found. There is no such thing as a Will registry where all signed wills are filed as a public record prior to death. But when a will has been probated with the County Surrogate’s office, “interested persons and their representatives” may conduct a search of the registry. New Jersey probate laws define an “interested person(s)” as “children, spouses, potential heirs, devisees, fiduciaries, creditors, beneficiaries, and any others having a property right in or claim against a trust, or the estate of a decedent which may be affected by a legal proceeding”.
Probate & Estate Litigation in New Jersey
BREACH OF FIDUCIARY DUTY BY A NJ EXECUTOR OR NJ TRUSTEE
Executors and trustees owe a fiduciary duty to the heirs and beneficiaries of the estate. A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of competency and due diligence. A fiduciary must always consider the best interests of the trust or estate before his or her interests. When an executor or trustee profits from his or her position, other than earning agreed-upon compensation or statutory commissions, they may have breached their fiduciary duty. A failure to safeguard trust or estate assets that causes a loss to the heirs and beneficiaries may also be a breach of fiduciary duty. The heirs and beneficiaries damaged as a result can file legal action against the executor or trustee. Under some circumstances, the executor or trustee can be held personally liable for the loss.
Understanding the Ins and Outs of an Estate 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 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 trustees to do an accounting. Trustees who fail to properly account for their actions may be removed by the court.
The court will order an executor or trustee to account if they do not do so, unless all of the 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.
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 if successful, New Jersey law allows treble damages against the party causing the loss of estate value.
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 general rule, agreements to make a bequest of property after death must be in writing. If they are not in writing, such agreements 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.
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 daughters that if she moves in and cares for her at home for the rest of her life, then 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 home between all six children. In this case, the daughter may have a valid 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 realized 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 property that would have been received but was not because of the misbehavior.
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.
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 firstname.lastname@example.org to set up an office consultation at your convenience. I welcome your calls and inquiries and you’ll find me easy to talk to and very approachable.
Mercer County Chapter of the New Jersey Society of CPAs
Fredrick P. Niemann spoke before the State Society of CPAs Mercer County Chapter on the subject of 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 through the use of 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
New Jersey Will Contest Probate Litigation Attorney | Probating a Will in NJ | Probate Dispute Lawyer
HNW Elder Law Practice Areas | Will Contest and Probate Litigation