Will Contests, Probate Litigation and Elder Abuse Actions Attorney
Litigators and trusts and estates attorneys with the Law Office of Donald D. Vanarelli bring the requisite experience and knowledge to a wide range of probate, estate and contested guardianship litigation. We seek a prompt resolution to disputes, while protecting and advancing our client's interests at all times. Litigation attorneys and trusts and estates specialists work together on probate, estate and/or guardianship litigation. This combination of experience and expertise enhances the likelihood of success for our clients.
I. Probate Litigation and Will Contests
Probate is a civil action to establish that a certain document was intended by a testator to be his or her Last Will and Testament and to determine whether that document is valid under the law. Probate litigation has increased dramatically in the last decade due to the splintering of the family unit, an ever more litigious society and the increasing wealth in our country.
The most common type of probate litigation is the will contest, which is a court action challenging the validity of a purported will. A variety of grounds exist under New Jersey law to challenge the validity of a will:
- Noncompliance with formalities - The focus is on whether the purported will meets the statutory requirements as to form and execution. Generally, at a minimum, a will must be in writing and signed by the testator and two witnesses.
- Revocation - The inquiry is to determine whether the will was revoked by the testator. When a contestant believes that the will filed for admittance to probate has been revoked by the testator, he or she must prove that the will was revoked by (a) the execution of a new will or of a codicil, (b) a subsequent divorce or marriage, or (c) an express act.
- Lack of capacity - The issue is whether the testator lacked the mental capacity to make the will. Will contests based upon the testator's lack of mental capacity are very common types of testamentary challenges. Testamentary capacity typically requires that a testator have sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the natural objects of his or her bounty, i.e., the family members and loved ones who would ordinarily receive such property by will, and (c) how his or her will disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament.
- Fraud - The issues are whether the testator was defrauded into signing a document, through intentional misrepresentation or concealment of a material fact which induced the testator to sign the will.
- Forgery - This claim involves the execution of a purported will by someone other than the testator.
- Mistake - The inquiry involves whether the testator was mistaken about the nature of the document, about the contents of the will or about an underlying fact which caused the testator to sign the will based on an inaccurate belief. The contestant has the burden to prove that the testator's will did not comport with the testator's intent.
- Undue Influence - This is the most common means by which a will is attacked. Undue influence refers to as "mental, moral or physical persuasion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and accepting instead the domination and influence of another". An undue influence challenge relates to whether the testator made a will freely, without being coerced by another person or persons. For example, a family member or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that individual, while excluding others who would typically receive an inheritance. To prove that the will was made under undue influence, one must show that a beneficiary exercised such influence over the maker of a will so as to override the deceased's true desires. To prove undue influence, courts will consider evidence relating to (1) old age or illness; (2) whether the person signing the will lived under the control and supervision of the beneficiary; (3) whether the will replaced a prior will; (4) whether the will was made in favor of a non-relative; (5) whether family members were disinherited; and (6) whether the beneficiary hired a lawyer to draft the will or otherwise arranged for its creation.
The attorneys at the Law Office of Donald D. Vanarelli have extensive experience representing individuals who are challenging (and executors who are defending) the validity of a will.
II. Trust Actions
1) Trust Contests
A trust contest is similar to a will contest. An individual may use a revocable trust, rather than a will, to provide for the ultimate distribution of his or her assets upon death. In other instances, an individual may create an irrevocable trust during life (usually in order to avoid taxes) for the benefit of family members or charities. Like a will, the validity of a trust may be contested.
2) Trust Reformation
When a trust created during an individual's life, or under a will, fails to qualify for favorable tax treatment or fails to accomplish a purpose for which it was intended, federal and state law often allow for the trust to be reformed through a court proceeding.
3) Trust and Will Construction
While a trust or will contest is based on challenging the validity of a trust or will, a construction proceeding begins with the assumption that the instrument is valid. In a construction proceeding, one or more parties seek court interpretation and adjudication of specific language in the instrument. Trust instruments and wills are sometimes unclear, ambiguous or contradictory as to (1) the identity of beneficiaries, (2) the operation of distributive property provisions, (3) the interests of lifetime beneficiaries versus remainder beneficiaries, or (4) the allocation of estate and/or income taxes. In such cases, a construction proceeding is appropriate.
4) Trust Litigation
The trustee of a trust owes the beneficiaries of that trust certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a trustee, the beneficiaries may assert the following claims, among others:
- Failure to make proper and timely distributions
- Improper investments
- Self-dealing
- Excessive trustee compensation
III. Guardianship Disputes
As the population ages, the elderly face increasing physical and mental impairments. Careful planning can protect an elder's estate assets against dissipation. For example, elders can utilize revocable "living" trusts and powers of attorney to management their assets. Unfortunately, many persons fail to make such plans, or the plans prove to be insufficient. As a result, court-imposed surrogate decision-making, such as a guardianship or conservatorship, may be necessary.
When an individual becomes incapacitated and can no longer manage his or her affairs or take care of himself or herself, family members or other concerned individuals may ask the court to protect the incapacitated individual by appointing a conservator or guardian. A similar proceeding for developmentally disabled or mentally ill individuals allows parents or family members to ask the court for the appointment of a guardian of the disabled person. In cases in which a minor is to receive a gift, inheritance, personal injury award, etc., it may be necessary that his or her parents (or other responsible adult) be appointed by the court as guardian of the minor's estate. In situations where a minor's parents die or their parental rights are terminated, the court may appoint a guardian of the minor.
Ordinarily, these conservatorship and guardianship proceedings are uneventful and uncontested. However, in some cases, disputes arise among family members or other interested persons.
We handle contested and uncontested cases involving the appointment of guardians for the elderly or incapacitated. Contested cases may involve:
- Challenging the appointment of a sibling or other person as unfit.
- Seeking to have a guardianship revoked because of financial abuse, emotional abuse or failure to care for the ward.
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