The consolidated Ruszala cases involved two elderly residents of assisted living facilities who had suffered injuries at their respective facilities and later died. In the negligence and wrongful death litigation that ensued, the defendant facilities moved to compel binding arbitration, based on the arbitration and limitation of liability provisions contained in the residency agreements signed by the plaintiffs.

At the trial level, after allowing limited discovery on the issue of enforceability of the provisions, the court had denied the defendants’ motions.

On appeal, the Appellate Division reversed the lower court’s finding that the FAA was inapplicable to the arbitration agreements contained in the residency agreements. It found that the case “involved” interstate commerce because of the economic activities performed by the facilities, and concluded that the FAA in fact preempts the anti-arbitration provisions of New Jersey’s  Residents’ Rights Act: “[o]ur State’s prohibition of arbitration agreements in nursing home contracts, designed to protect the elderly, is … irreconcilable with our national policy favoring arbitration…. Under our federal system of government, national policy prevails.” Slip op. at 5, 28.

However, the Ruszala court affirmed the lower court’s finding that some of the arbitration agreement provisions were unenforceable, based on the doctrine of substantive unconscionability. In particular, the provisions limiting discovery, limiting compensation for non-economic damages, and precluding punitive damages, were found to be substantively unconscionable, and were stricken from the arbitration agreement.

The Appellate Division was “satisfied that the residence agreements are contracts of adhesion.” Having so found, the Court went on to consider the four factors for substantive unconscionability set forth in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 356, cert. denied, 506 U.S. 871 (1992):

[1] the subject matter of the contract; [2] the parties’ relative bargaining positions, [3] the degree of economic compulsion motivating the ‘adhering’ party, and [4] the public interests affected by the contract.

Id.  The Ruszala court applied these factors and found unconscionable the limitation of discovery, the limitation of compensatory damages, and the prohibition of punitive damages, and accordingly severed those provisions from the contract.

The Ruszala court opined that the discovery restrictions to be “arguably the most palpably egregious.” By limiting depositions to experts only, plaintiffs would be unable to depose facility staff members directly responsible for the care of the resident, or any other fact witnesses. It found that the compensatory damages cap permits nursing home operators “to budget potential liability as a mere cost of doing business.” The Ruszala court also declared that the punitive damages ban thwarts society’s expression of disapproval of “intolerable conduct,” and eliminates the deterrent effect that punitive damages afford. As it concluded,

When considered together, the restrictions on discovery, limits on compensatory damages, and outright prohibition of punitive damages form an unconscionable wall of protection for nursing home operators seeking to escape the full measure of accountability for tortious conduct that imperils a discrete group of vulnerable consumers. This is precisely the evil the Legislature sought to enjoin by passing the [Residents’ Rights Act].

Slip op. at 37.

Finally, the court remanded the case for a hearing as to whether one of the plaintiffs had actual or implied authority to enter into the contract on her husband’s behalf, to determine whether a valid contract had been formed between the parties.

The case is annexed here – Estate of Ruszala v. Brookdale Living Communities, Inc.

According to the Foundation’s website, Renaissance magazine, published for the past 17 years, is “the premier publication for mature adults in New Jersey,” with a readership of over 100,000. The magazine focuses on the interests of “mature adults.”

Mature or not, I regularly peruse Renaissance magazine, and have done so for years. Therefore, I was happy to write a short article for the August/September 2010 issue entitled “Estate Planning Tools: What’s Available?” Snappy title, right? It isn’t mine, though; the Renaissance staff came up with the phrasing. However, I did write the article, covering Last Wills and Testaments, Powers of Attorneys, Advance Medical Directives and Health Care Proxies. My thanks to Grace Egan, Executive Director, and my friend Mark Tabakman, Esq., this year’s President of the Board of Trustees, for asking me to participate. Hope you enjoy the article.

My article is attached – Article in NJ Foundation for Aging Magazine

After John Lopes was admitted to a nursing home, his wife, Amelia, purchased a irrevocable, nontransferable, single premium annuity for $166,220.50. After the purchase, the remaining assets owned by the couple were below Mrs. Lopes’ community spouse resource allowance, which she was permitted to retain under the Medicaid rules. She received a letter from the annuity company saying that “neither the Annuity Contract, nor any periodic payments due thereunder can be cashed-in, sold, assigned, or otherwise transferred, pledged, or hypothecated.” Mr. Lopes applied for Medicaid. The state identified a potential buyer of the annuity’s income stream and directed Mrs. Lopes to attempt to sell the annuity. Mrs. Lopes refused, claiming that she was not legally obligated to sell the annuity income stream and, as a result, would not attempt to do so. The State of Connecticut then denied Medicaid benefits to Mr. Lopes. The State claimed that the income stream from the annuity was an available asset which could be sold on the secondary market.

Mr. Lopes filed a Complaint in the federal district court in Connecticut, seeking an injunction as well as damages and attorneys fees. Thereafter, Mr. Lopes filed a motion for summary judgment, and the State filed a cross-motion for summary judgment.

The U.S. District Court for the District of Connecticut granted Mr. Lopes’ motion for summary judgment, and denied the State’s cross-motion. The court held that the annuity company did not permit Mrs. Lopes to assign the income stream from her annuity, so it could not be characterized as an asset. The court further found that, even if the income stream were assignable, “it would be incongruent with the principles of [Medicaid law] to permit a state to characterize even an assignable income stream as an asset.” The court also noted that the Deficit Reduction Act does not require that states treat annuities as assets. The State of Connecticut was directed to approve Mr. Lopes’ Medicaid application, and Mr. Lopes was instructed to file a motion for attorneys fees and costs.

The case is annexed here in PDF format – Lopes v. Starkowski

Now that the public has access to these previously unpublished decisions, it is apparent that many of the decisions prepared by trial judges are excellent, well-prepared and well-reasoned. There is something more, too: trial court decisions are direct, plain-spoken, candid, and written with the practicality required to achieve resolution in a dispute when the fight is right in front of the court. Trial judges have first-hand knowledge of the facts of the case through their management of the lawsuit in extended pre-trial proceedings and observation of the witnesses at trial. As a result, trial court decisions have an immediacy often lacking in decisions by higher court judges, who have usually never met the parties and know the facts of the case only by reading the record. Trial decisions are engaging to read. I’ve recently blogged about several trial court decisions posted on the judicial website. Those blog posts can be found here, here and here.

Several days ago, Hon. Peter E. Doyne, A.J. S.C., a trial court judge in Bergen County, posted an interesting trial opinion on the state judicial website in a case entitled In The Matter Of The Estate Of Pasquale Suraci, Deceased, Docket No. BER – P – 284 – 09 (Bergen Cty., Chan. Div., August 9, 2010).

The matter came before the court on parties’ respective motions for partial summary judgment. The dispute involved conflicting claims of ownership of approx. $100,000 in a TD Ameritrade investment account. The account was owned by Pasquale Suraci (the “decedent”) and his daughter, Flora, as joint tenants with rights of survivorship. Plaintiffs, decedent’s grandchildren, asked the court to treat the account as part of decedent’s probate estate and order that the account be distributed in accordance with the decedent’s will. Flora, on the other hand, claimed that she became the sole owner of the account as a matter of law under New Jersey’s Multiple-Party Deposit Account Act (the “Act”), which provides that the contents of a joint account shall pass to the surviving joint owner upon the death of one of joint owners “unless there is clear and convincing evidence of a difference intention at the time the account is created … .” The issues identified by the Court were as follows: whether New Jersey law mandates the account pass to Flora by operation of law, whether the account was the result of undue influence based upon his purported confidential relationship with his daughter and son-in-law, and whether decedent intended for this account to be transferred to defendant upon his death or whether it was merely a convenience account intended to be transferred back to the estate and probated according to the terms of his will.

After analyzing the Act, Judge Doyne concluded that the Act does not govern securities and brokerage accounts such as the TD Ameritrade investment account owned by the decedent at the time of his death. Accordingly, the court denied Flora’s motion for partial summary judgment. Judge Doyne then analyzed plaintiffs’ claims of undue influence and similar claims and determined that they were all “fact sensitive” determinations, contested by defendant, which could not properly be decided in a summary manner. As a result, plaintiffs’ motion for partial summary judgment was also denied.

The case is annexed here – In The Matter Of The Estate Of Pasquale Suraci, Deceased

When I met G.Z., he had then recently received a notice from SSA informing him that he had been overpaid by $43,128.18 in disabled adult child (DAC) benefits. (To qualify for DAC benefits from SSA, an applicant must show that he or she was disabled prior to the age of 19, that one of the applicant’s parents is deceased or receiving Social Security benefits, and that the applicant is unmarried. If qualified, the disabled adult child receives DAC benefits on his or her parent’s social security number.) G.Z. had received DAC benefits for many years, but had gotten married, rendering him ineligible for DAC benefits. The overpayment was caused when G.Z. continued to receive SSA benefits after his marriage. G.Z. was told he could request a waiver of the overpayment or file an appeal. We did both. In addition, we also filed a new claim seeking SSI benefits for G.Z, since G.Z. had no income (because his DAC benefits had been terminated) and few resources.

Several months later, the client was notified that the $43,128.18 overpayment of DAC benefits had been waived by SSA because G.Z. met the criteria for a waiver; that is, G.Z. was found to be without fault in causing the overpayment and was financially unable to repay. G.Z. also received notice that his claim for SSI disability benefits had been approved. However, G.Z. was awarded the lowest SSI monthly benefit amount available because SSA determined that G.Z. received “in-kind support and maintenance” from his nephew, J.Z., with whom he lived. (”In-kind support and maintenance” means unearned income that an SSI recipient receives in the form of food or shelter paid for by someone else. The receipt of in-kind support and maintenance by an SSI recipient results in the reduction of the recipient’s monthly SSI benefit amount.)

Because G.Z. had signed a Loan Agreement with his nephew J.Z. several months before he applied for SSI benefits agreeing to repay J.Z. for any support provided to G.Z., G.Z. did not believe he received in-kind support and maintenance from J.Z. As a result, G.Z. filed an appeal, asking SSA to reconsider its decision to pay G.Z. the lowest SSI monthly benefit amount available. However, on reconsideration, SSA affirmed its prior decision, concluding that the Loan Agreement was not bona fide because there was no possibility that the loan could ever be repaid given G.Z.’s low income and resources. Believing that his Loan Agreement was, in fact, bona fide, G.Z. filed a Request for Hearing before an Administrative Law Judge (ALJ).

While the SSA/SSI claims and appeals were proceeding, G.Z. had filed for divorce.  At the time of the divorce, G.Z. had been married for almost eight (8) years to L.Z. In order to resolve the issues in the divorce, the parties adopted in total the recommendations of the Middlesex County Early Matrimonial Settlement Panel, comprised of experienced family law practitioners, concerning an appropriate alimony award and the equitable distribution of marital assets. In that regard, the Panel recommended that L.Z. pay G.Z. a lump sum alimony award of $20,000 and the equitable distribution of marital assets in the amount of $75,000, for a total payment of $95,000 in satisfaction of L.Z.’s financial obligations to G.Z. resulting from the termination of their marriage. The Panel also recommended that the lump sum payment be made to a Special Needs Trust as a result of G.Z.’s disability in order to maintain eligibility for SSI benefits. The terms of the parties’ settlement were set forth in a Marital Settlement Agreement and Dual Judgment of Divorce. Thereafter, a SNT was established and the payment was made to the trustee of the SNT in accordance with the parties’ agreement. We notified SSA of the establishment and funding of the SNT, a requirment under the SSI regulations.

After the divorce was finalized, SSA scheduled a hearing on G.Z.’s appeal. After the hearing, we submitted a letter brief in support of the appeal. Thereafter, the ALJ issued an opinion which reversed SSA’s conclusion that G.Z. received in-kind support and maintenance from J.Z. The ALJ ruled that, as G.Z. claimed, the Loan Agreement was bona fide because the loan would soon be repaid by the trustee of the SNT using the trust assets obtained in G.Z.’s divorce. As a result, the ALJ ordered SSA to increase G.Z.’s SSI benefit to the highest monthly benefit amount available.

Get all that? I hope so. The result: A wholly successful outcome for the client and, hopefully, an interesting post for readers of this blog.

It has been brought to my attention and I am sure many of you know that Mr. J is reapplying for his position as a teacher in this town. It has further been pointed out that certain people are soliciting supporters for him. This is tantamount to supporting the devil himself. I am not asking anyone to speak out against Mr. J but I urge you to then be silent as we can not continue to allow the children of this school system nor the parents to be subjected to his evil ways. Thank you. Josh

A week after he received the third email  message, plaintiff filed a lawsuit seeking damages for intentional infliction of emotional distress and harassment. Because he did not know the identity of the author of the e-mails, plaintiff named the defendant as “John/Jane Doe” and served a subpoena on Yahoo! Inc. (”Yahoo!”), the Internet service provider listed on the emails, to provide him with the author’s identity. Yahoo! notified its subscriber that it had received the subpoena and the subscriber, proceeding as “John/Jane Doe,” moved to quash the subpoena.

In opposition to defendant’s motion to quash, plaintiff certified that the threatening emails “severely disrupted [his] life . . . [causing] deep anger and depression . . . [and] insomnia [that] impaired [his] ability to concentrate and function effectively.” Plaintiff also certified that the emotional stress manifested itself physically, exacerbating his back problems, causing him to lose twenty pounds and substantially increase his medication. Although the defendant argued that plaintiff had not established a prima facie case for the claims asserted, the trial court disagreed and denied defendant’s motion to quash. The court also denied a motion for reconsideration filed by defendant.

The appellate court granted defendant’s motion for leave to appeal. On appeal, the court first noted that, in general, judges considering applications to discover the identity of an anonymous sender of emails through Internet service providers must strike a balance between the First Amendment right to speak anonymously with the right of the plaintiff to protect his reputation. In doing so, the court set forth the following guidelines:

1. Plaintiff must notify the anonymous poster.
2. Plaintiff must set forth the exact statements alleged to be wrongful.
3. The trial court must then carefully review the complaint and all information provided, and must determine that plaintiff has produced sufficient evidence supporting each element of his cause of action.
4. If a plaintiff satisfies those steps, the trial court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to proceed.

The appellate court analyzed the facts asserted by plaintiff and found that he failed to state a prima facie claim of intentional infliction of emotional distress. In that regard, the court held that the comments posted by “Josh,” while upsetting to plaintiff, could not fairly be characterized as “extreme and outrageous” or “beyond all possible bounds of decency, the standard required by the law to state an intentional infliction of emotional distress claim. Further, the court held that plaintiff did not submit any objective evidence to support his contention that the emails caused distress “so severe that no reasonable man could be expected to endure it,” also a required element of the claim asserted by plaintiff. As a result, the appellate court reversed the trial court’s Order, and quashed the subpoena served upon Yahoo.

The case is annexed here – Juzwiak v. John/Jane Doe a.k.a. “Josh Hartnett,” a.k.a. Jharthat@yahoo.com

After more than two years of litigation, and eight days of trial that spanned from March to December of 2009, Union County Superior Court Judge John F. Malone, P.J.Ch., issued his opinion on May 11, 2010, ruling in favor of my client and dismissing the son’s guardianship complaint.

Judge Malone found that my client’s son had failed to meet his burden of demonstrating that my client was incapacitated; instead, Judge Malone declared that my client was “logical, coherent and has good clarity of thought. [He] functions cognitively; he is lucid, alert, he can understand, communicate and remember information.”

In denying the son’s application for guardianship, the judge ruled as follows:

The court may appoint a guardian of the person, estate or both under N.J.S.A. 3B:12-24.1, if it is proven that an individual is incapacitated…. The basic test of mental competency is whether the mind of the individual is unsound to such an extent as to render him incapable of governing himself and managing his affairs. N.J.S.A. 3B:1-1; 3B:1-2. Mere failure of memory, decay and feebleness of the intellectual faculties are not evidence of that degree of unsoundness of mind that will justify a finding a person incapacitated…. Moreover, “the burden of demonstrating that an individual is incompetent requires proof that is clear and convincing.” In re Goldemberg, 2006 WL 337083 (N.J. Super. Ch.), citing In re Grady, 85 N.J. 235, 265…. In the case at bar, the Petitioner has failed to demonstrate its case to a clear and convincing standard showing that [the alleged incapacitated person] has an impaired ability to govern himself and manage his affairs pursuant to N.J.S.A. 3B:1-2. …

In making his decision, Judge Malone recognized that the fundamental rights guaranteed to all competent people are lost upon a declaration of incapacity; because the gravity of that loss, proving incapacity is a heavy burden on the person making the claim of incapacity:

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty… and of pursuing and obtaining safety and happiness.” N.J. Const. Art. 1, 1. Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. In re M.R., 135 N.J. 155 (1994). Further, competent persons enjoy the right to determine treatment alternatives, including the termination of medical treatment. Id. The Supreme Court of New Jersey has held that the right to self-determination is a fundamental right. Matter of M.R., supra,… thus, the burden of proof must fall to the challenger of that right. Id. at 166, 169.

In my case, the son had argued that some of his father had made imprudent financial and medical decisions, such as allowing a caregiver/companion to move into his house with her family; making gifts to the caregiver/companion, and checking himself out of a rehabilitation facility following an injury, against medical advice. The son argued that these decisions were evidence that the father could no longer properly handle his affairs. The court disagreed, finding that:

Although [the father’s] spending habits are not consistent with his long-held patterns of spending, eccentricity cannot be confused with diminished capacity. [The father] does not want a guardian and he wants to spend his money how he pleases. [He] wants to make his own decisions in a manner that makes his life good and meaningful and he has done so through non-traditional means by moving [the caregiver/companion] and her three children into his home. [He] wants to reside in his home and he is able to do so with the help of [the caregiver/companion]. Though there are more qualified caregivers available, [he] has chosen [her] to assist him in the home. It is [his] fundamental right to make such choices because he is a competent person.

The Court’s written opinion is annexed hereto – Judge Malone’s Decision in the T.S. case

The judgment entered by the Court dismissing the case is annexed hereto – T.S. – Judgment of Dismissal

In a later decision resulting from the court-appointed guardian ad litem’s application for payment of his legal fees, the Court ordered that my client and his son each pay 50% of those fees.

The Court’s Order regarding those fees is annexed hereto – Judge Malone’s Order and Judgment Awarding Fees

UPDATED ON AUGUST 27, 2010: The Post-Trial Brief I submitted on behalf of my client, the alleged incapacitated person, who was ultimately found by the Court to be competent is attached here -  Post-Trial Brief

UPDATED ON AUGUST 28, 2010: My client’s son, the loser at trial, recently filed a Notice of Appeal. The case is, sadly, not over.

Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment for J.M., a 42 year old Jamaican home health aide with end-stage renal disease. J.M.’s treating physicians indicated that dialysis was immediately necessary to save J.M.’s life, but J.M. refused dialysis treatment against medical advice. The hospital filed a Verified Complaint, claiming that J.M. lacked the mental capacity to consent to the medical treatment that she needed.

The court appointed an attorney to serve as J.M.’s legal counsel. After conducting an investigation, J.M.’s attorney filed a report which recommended that a special medical guardian be appointed by the court so that dialysis treatments could begin. The attorney’s recommendation was contrary to J.M.’s wishes. Upon receipt of the report, the court appointed a second attorney to represent J.M., and stated that, as J.M.’s legal counsel, the second attorney was required to advocate for J.M.’s expressed wishes. The first attorney was discharged as J.M.’s legal counsel because, in recommending that a special medical guardian be appointed against J.M.’s wishes, the first attorney had acted as a guardian ad litem rather than legal counsel for J.M.

In explaining the difference between a court-appointed counsel for an alleged incapacitated person and a guardian ad litem and why the court appointed a second attorney to represent J.M. after receiving the first attorney’s report, the court stated:

In competency matters, the court-appointed attorney’s role is to prepare a report after interviewing knowledgeable persons and investigating the situation.  The attorney represents the alleged incapacitated person … as he or she would in any other legal dispute. … [T]he attorney writing the report to the court will advocate the wishes of the patient… While the attorney must be a zealous advocate, there are limits to his representation when “the decisions [of the alleged incompetent] are  patently absurd or pose an undue risk of harm.” When such a situation arises, or other circumstances exist, the court may appoint a guardian ad litem in addition to the court-appointed counsel. The role of the guardian ad litem is to act as “eyes of the court” and further the best interests of the patient, even if those interests may differ from what the alleged incapacitated person wants. … However, although  appointed as counsel, [the first attorney], in fact, advocated the best interests of J.M. as would a guardian ad litem …. Thus, [the second attorney] was appointed after [the first attorney’s] report was received to represent J.M. to advocate J.M.’s expressed views. [citations omitted]

The court ultimately found that J.M. was, in fact, incapacitated. A special medical guardian was appointed, and dialysis was provided which saved J.M.’s life.

Judge Koblitz’s written opinion is attached here -  In the Matter of J.M. for the Appointment of a Special Medical Guardian

In June 2010, the Social Security Administration (SSA) issued a new SSA Program Operations Manual System (”POMS”) section regarding early termination provisions in trusts. The new POMS section, which will affect all beneficiaries of SNTs who receive Supplemental Security Income (SSI) benefits, significantly changes existing law. The new POMS section becomes effective on October 1, 2010, but applies retroactively to all trusts created on or after January 1, 2000.

Under the new POMS section, all SNTs that were established on or after January 1, 2000 and contain early termination provisions will be rendered ineffective, resulting in the assets in the trust becoming countable as a resource under SSI, unless the SNTs provides as follows:

1. Upon early termination (i.e., termination prior to the death of the beneficiary), the State(s), as primary assignee, must receive all amounts remaining in the trust at the time of termination up to an amount equal to the total amount of medical assistance paid on behalf of the individual under the State Medicaid plan(s);
2. No person or entity other than the trust beneficiary may benefit from the early termination (i.e., After reimbursement to the State(s), all remaining funds must be disbursed to the trust beneficiary); and,
3. The early termination provision must give the power to terminate the trust to someone other than the trust beneficiary.

Here’s a common situation that would be effected by the new POMS section. Assume that a disabled child is the beneficiary of a special needs trust that was established after January 1, 2000 with assets of the child. The trust contains an early termination clause that states that, upon early termination, all assets remaining in the trust will be distributed to the beneficiary. Under the new regulations, the special needs trust would be a countable resource because, upon early termination, the document does not allow for reimbursement first to the State(s) for providing medical assistance to the trust beneficiary.

Many, if not most, early termination provisions in existing SNTs will not meet the requirements set forth in the new POMS section. As a result, all SNTs should be reviewed by qualified legal counsel and amended, if appropriate.

The new POMS section can be found here – https://secure.ssa.gov/apps10/poms.nsf/lnx/0501120199!opendocument

The decedent, Ronald M. Denner, died in 2005. The decedent’s 1989 will, which was properly signed, dated, witnessed, notarized and met all of the other statutory requirements, was admitted to probate. Thereafter, plaintiff presented three documents to the Court which she asserted should have been admitted to probate in lieu of the 1989 will. All three documents were unsigned, undated, and neither witnessed nor notarized. In response, defendant filed a motion to dismiss plaintiff’s application for failure to state a claim because none of the documents offered by plaintiff as the decedent’s will were signed by the decedent.

The formalities which must be followed to produce a valid will in New Jersey are set forth in N.J.S. 3B:3-2 which provides as follows:

a.      Except as provided in subsection b. and in N.J.S. 3B:3-3, a will shall be:
(1)      in writing;
(2)      signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
(3)      signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.
b.      A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
c.      Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.

If the formalities set forth in N.J.S. 3B:3-2 are not followed by a decedent, a document purporting to be a will can still be admitted to probate under N.J.S. 3B:3-3, entitled “writings intended as wills”, which provides as follows:

Although a document or writing added upon a document was not executed in compliance with N.J.S. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

After reviewing the law, the Court denied defendant’s motion and permitted plaintiff’s case to proceed to trial. The Court held that the failure to sign a document purporting to be a will is not a per se bar to its admission to probate. Under N.J.S. 3B:3-3, even the failure to execute a will can be overcome if the proponent of the purported will establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s will. Therefore, the Court ruled, the proponent of the will in this case should be given the opportunity to establish her case through discovery and trial rather than dismissing it on motion.

The case is annexed here – In the Matter of the Estate of Ronald M. Denner