NJ Probate Litigation : New Jersey Probate Litigation Lawyer & Attorney : Cohn Lifland Pearlman Hermann & Knopf Law Firm : Last Will & Testament, Contested Estates

In this very space, back on October 1, 2010, we examined the curious case of Louise R. Macool. Ms. Macool’s draft Will as dictated to her attorney before her untimely demise was not admitted to probate since she had not read it and given her final assent. Despite rejecting that proposed Will, New Jersey’s intermediate appellate court in Macool considered a statute new to this state and noted that, had the proponent of the draft Will submitted “clear and convincing evidence” that Ms. Macool intended the draft Will to control, it would be accepted whether it was signed by Ms. Macool or not.

Now, one of our trial courts has applied that reasoning in accepting an unsigned testamentary document--and a partial document at that.

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Even where the plain language of a Last Will and Testament is unambiguous as to the identity of beneficiaries and the assets they are to receive, the doctrine of probable intent may lead to a result that directly contradicts that plain language.

That is precisely the scenario examined by New Jersey’s intermediate appellate court In The Matter of the Estate of Frances Marie Ackerson Yetter, Deceased, decided this past December.

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What happens when someone bequeaths a specific asset to a beneficiary but, when the testator dies, the asset is gone? That is one of the questions addressed by New Jersey's intermediate appellate court in an unpublished decision handed down this week, In the Matter of the Estate of Louis S. Grant, Sr., Deceased, Nos. A-0078-09 and A-0079-09.

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While planning your estate, you may anticipate a disinherited family member or friend making a stink about the contents of your Will. Since combat over the probate of Wills and undue influence over testators can be emotionally and financially draining for the combatants, you may want to short circuit such conflict before it begins. Not so fast, says New Jersey’s legislature and intermediate appellate court.

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Until recently, New Jersey law required wills and codicils to be signed by the testator in order for the document at issue to be considered effective.  While it remains of the utmost importance for testamentary documents to be signed and witnessed as provided by law, a statute that took effect in 2005 has opened a path to the courthouse for the proponents of unsigned testamentary documents.  For the first time, New Jersey’s appellate courts have issued a published opinion interpreting that law.

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The New Jersey Rules of Court require an Executor of an Estate to mail a “Notice of Probate” to all beneficiaries and next-of-kin of the deceased within sixty days of the probate of the Will, at their last known addresses. Within ten days of the mailing, the Executor must file proof of mailing with the Surrogate of the county in which the Will has been probated. If the Executor does not know the names or addresses of any of the beneficiaries, and cannot discover them with a “reasonable inquiry,” the Notice should be published in a newspaper of general circulation in the county of probate.

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An appellate court in New Jersey issued an opinion this past March addressing when and how someone challenging the probate of a Will can have their attorney’s fees and costs paid by the Estate. As with many legal concepts, the answer is: sometimes.

In general, the courts in this country follow the aptly-named “American Rule,” which provides that each party to a lawsuit pays his/her/its own attorney (as opposed to the “English Rule,” under which the losing party pays). However, in New Jersey, Rule 4:42-9 lays out instances in which the responsibility for counsel fees may “shift”. One of those instances is probate matters.

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No one should confuse the circus that is happening in Florida in the probate matter involving Anna Nicole Smith as a normal proceeding.  True the matter is being heard in a probate court.  But that virtually ends the similarity to the customary probate hearing.  The matter involves the unfortunate death of a young woman who was a celebrity who actively sought controversy during her life.  That controversy involved her marriage to a much older man  who was worth millions, a celebrated court proceeding that went all the way up to the United States Supreme Court, posing in men's magazines or just posing in general for the paparazzi, the extensive use of drugs in her family and the birth of a baby with suspected parentage.  When you add to that cocktail a judge who obviously has little or no control over his courtroom ,disaster  will happen. 

Probate proceedings are generally conducted in the privacy of a courtroom without any cameras or press present.  The proceedings are dignified and are not paraded in front of the evening news and scandal sheets.

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Actions to settle up an estate and receive approval for the manner in which the estate has been administered and divided are accounting actions. Rule 4:87 provides the rules for such an action and will be discussed in greater detail in later comments.  Generally they are filed in the same manner as a contested action and must follow a prescribed form.  Each account shall have annexed to it a detailed listing of the financial history again in a prescribed form. (Rule 4:87 to 4:87-9)  By agreement, the parties may agree not to provide an accounting although if there is any question it is much safer to provide the information.  If commissions are sought, the applicant must provide a detailed statement of all services performed as well as a disclosure of all commissions already received.  Where attorneys fees are sought detailed applications must also be provided. (Rule 4:88-1 to 4:88-4)

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