New Jersey Estate & Trust Litigation

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Paul F. Cullum III, Michael R. Griffinger

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"For many lawyers, venturing into estate litigation is much like arriving for a week’s stay in Barcelona without a tour guide. They find themselves in unfamiliar territory. Where to start?" —Gerald C. Escala, Ret. Superior Court Judge, Bergen County

Keep the lid on the family feuds by giving sound legal advice for various actions likely to be encountered in probate litigation. It’s all here in once place to learn or locate. Whether you are preparing a will and related documents, or engaged in probate litigation, New Jersey Estate & Trust Litigation will navigate the case law and unpublished decisions and procedure you’ll need to know.

New in this edition:

  • Amendments to NJ Court Rules governing guardianship matters, including new forms
  • Legislation UFADAA
  • Cases on Elective Share and Medicaid, Fiduciary Duty and the Investment Firm, Shifting of Counsel Fees, Funeral Arrangements, Writings Intended as Wills, Testamentary Capacity, Will Contest, Trusts and Standing, Palimony, and Federal Jurisdiction Damages

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  • Availability: Available
  • Brand: New Jersey Law Journal
  • Product Type: Books
  • Edition: 0
  • Page Count: 656
  • ISBN: 978-1-62881-527-6
  • Pub#/SKU#: JESTL19
  • Pub Date: 10/28/2018
  • Volume(s): 1
  • Frequency: Annually

Author Image
  • Paul F. Cullum III
The idea and the greater part of the original edition of this book were the work product of Paul F. Cullum III. He received much help from his mentor, Michael R. Griffinger and from his then-colleagues at Gibbons LLC, Cathleen T. Butler and Rita M. Danylchuk, but he conceived the structure and crafted the details.

At the time of his death on November 3, 2012, Cullum was a partner in LeClairRyan’s Litigation Group, where his complex litigation practice focused on estate litigation and general commercial business litigation. He represented clients in numerous estate and intestate litigation matters concerning many of the areas cited in this book. In addition, he represented trustees and clients in guardianship and conservatorship proceedings.

Cullum was recognized in 2010, 2011 and 2012 as a “New Jersey Super Lawyer” for his work in the trust and estate litigation practice areas. Cullum was appointed and had served for many years as a panelist on the Early Settlement Program, Essex County, Chancery Division, Probate Part. He also wrote and published many journal articles on the subject

matter of estate litigation.

Cullum was a frequent lecturer in the areas of estate litigation. He was a member of the Peninsula Estate Planning Council in the Commonwealth of Virginia. He was also AV® Peer Review Rated by Martindale-Hubbell.

Cullum was a graduate of Seton Hall University Law School, cum laude, Monmouth College (M.B.A.) and the College of William & Mary. He was admitted to practice law in New Jersey, New York, District of Columbia, and Virginia.

Cullum passed away on November 3, 2012.

Author Image
  • Michael R. Griffinger

Michael R. Griffinger is a Director in the Business & Commercial Litigation Department of Gibbons P.C. in Newark, NJ, and a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, and the American Bar Foundation. Mr. Griffinger has been an active litigator for nearly 50 years. His practice is focused primarily on sophisticated corporate and commercial disputes, securities litigation, antitrust matters, as well as estate litigation. He frequently defends both fiduciaries and beneficiaries in estate disputes. He has conducted trials and hearings in federal and state courts throughout the United States.

Regularly included in the Best Lawyers® annual guide, Mr. Griffinger has been selected for inclusion by his peers in seven different categories, including Litigation – Trusts and Estates, for many years, including the current edition. He has also been listed in the most recent editions of New Jersey Super Lawyers, where he has been listed among the top 10 lawyers in the state, and the top tier in Chambers USA. In 2013, he received the New Jersey State Bar Foundation’s Medal of Honor Award. He received the Brennan Award from the Association of the Federal Bar of NJ in 2010, as well as the Trial Bar Award from the Trial Attorneys of New Jersey in that year. The New Jersey Law Journal gave him its Lifetime Achievement Award in 2016 and NJBIZ named him an Icon in 2013, the inaugural year of this award.

Mr. Griffinger earned his J.D. from Columbia University School of Law, M.B.A. from Columbia School of Business, and B.A. from Cornell University.
Mr. Griffinger is a frequent lecturer for organizations, including the Institute for Continuing Legal Education and Practising Law Institute. He has been active in the New Jersey State Bar Association, having served as a Trustee as well as the Chairman of the Judicial and Prosecutorial Appointments Committee.

About the Contributor

Rita M. Danylchuk is counsel to Gibbons, P.C. and a member of the Corporate Department and Chair of the Trusts and Estate Practice Group. She represents numerous clients in all areas of trust and estate planning, charitable giving and estate administration. Danylchuk is a Certified Public Accountant in New Jersey (currently inactive) and a member of the Bars of the States of New York and New Jersey. She has lectured frequently on estate planning and estate administration and published numerous trusts and estates articles.

Danylchuk earned her J.D. from Washington University School of Law, her L.L.M in Taxation from New York University and her B.S. from Boston College.

Full Table of Contents

Chapter 1

General Concepts in Estate Litigation


1-1          Jurisdiction

1-1:1      Probate Jurisdiction

1-1:2      Surrogate’s Court Jurisdiction

1-1:3      Superior Court Jurisdiction

1-1:4 Federal Jurisdiction and Probate

1-2          The Concept of Probate

1-3          Initiating Action in Superior Court, Chancery Division, Probate Part

1-4          The Role of the Superior Court, Chancery Division, Family Part

1-5          Standing to Institute or Participate in Probate Litigation Action

1-6          Statute of Limitations with Respect to Probate Actions

1-6:1      To Contest a Probated Will

1-6:2      Elective Share Actions

1-6:3      Creditors’ Claims

1-6:4      Legal Malpractice

1-6:5      Breach of Fiduciary Duty, Fraud, Misappropriation, Conversion

1-6:6      Wrongful Death Actions

1-6:7      Action Against Personal Representative of Estate

1-6:8      Waiver of Statute of Limitations

1-7          Adjudication of Legal Claims in Chancery Division, Probate Part/Right to Jury Trial

1-8 Proper Venue

1-9          Domicile

1-10       Representation of Minor or Mentally Incapacitated Person in Probate Litigation

1-11       Application of Entire Controversy Doctrine to Probate Litigation

1-12       Application of Res Judicata to Probate Litigation

1-13       Application of Collateral Estoppel to Probate Litigation


Chapter 2

Gifts (Inter Vivos Transfers)


2-1          Requirements for a Valid Gift (Inter Vivos Transfer)

2-2          Gift Causa Mortis

2-3          Challenges to Gifts ( Inter Vivos Transfers)

2-3:1      Burden of Proof and Rebuttable Presumption for Gifts

2-3:2      Undue Influence and Gifts

2-3:3      Lack of Donative Intent

2-3:4                      Conditional Gifts

2-4          Power of Attorney

2-5          Advance Medical Directives


Chapter 3



3-1          Incapacitated Persons

3-1:1      Jurisdiction

3-1:1.1  Domicile

3-1:1.2  Standing

3-1:2      Procedure

3-1:2.1  Court Rules and Statutes

3-1:2.2  Filing of Affidavits

3-1:2.2a                Affidavit of Assets

3-1:2.2b                Physicians’ Affidavits

3-1:3      Substantive Aspects

3-1:3.1  Role of Court-Appointed Attorney and Guardian Ad Litem

3-1:3.2 Determination of Incapacity and Hearing

3-1:3.3 Determination of Guardian

3-1:3.4  Final Appointment of Guardian

3-1:3.4a                Guardian of the Person

3-1:3.4b                Guardian of the Estate

3-1:3.4c                Appointment of Testamentary Guardian for Mentally Incapacitated Adult

3-1:3.4d                Limited Guardian and Temporary Guardian

3-1:3.5  Return to Competency

3-1:3.6  Revocation of Guardianship

3-1:3.7 Inventory, Well-Being Report and Accounting

3-2          Minors

3-2:1      Jurisdiction—Domicile

3-2:2      Procedure—Court Rules/Statute

3-2:3      Substantive

3-2:3.1  Testamentary

3-2:3.2 Special and Limited Guardian of Minor

3-2:3.3 Priority of Appointment of Living Parents or Others as Guardian

3-2:3.4  Appointment of Guardian

3-2:3.5 Duties and Powers of Guardian

3-2:4      Kinship Lega lGuardianship

3-2:5      Standby Guardian


3-3          Veterans

3-3:1      Generally

3-3:2      Appointment of Public Guardian

3-4          Conservators

3-5          Protective Arrangements

3-6          Special Medical Guardian

3-7          Guardian for Persons Receiving Services from Division of Developmental Disabilities




Chapter 4

LitigationInvolving Intestacy


4-1          Jurisdiction

4-2          Domicile

4-3          General Administrator

4-4          Other Types of Administrators

                4-4:1      Administrator, C.T.A.

                4-4:2      Administrator Pendente Lite

                4-4:3     Substituted Administrator

                4-4:4     Administrator Ad Prosequendum

4-5          Procedure for Appointment of Administrator

4-6          Contesting Administration

4-7          Intestate Succession

                4-7:1      Parent’s Intestate Share

                4-7:2      Adopted Heirs

                4-7:3      Illegitimate Heirs

4-7:4      After-Born Heirs

4-7:5      Missing Heirs

4-7:6      Stepchildren

4-8          Distribution of Intestate Estate to Minor


Chapter 5

Litigation Involving Wills


5-1          Jurisdiction

                5-1:1      Probate Jurisdiction

                5-1:2      Surrogate’s Court Jurisdiction

                5-1:3      Superior Court Jurisdiction

                5-1:4      Domicile


5-2          Probate

                5-2:1      Lost Will

                5-2:2      After-Discovered Will

                5-2:3      Codicil


5-3          Will Contests—Procedural Issues

                5-3:1      Prior to Probate of Will—Caveat Against Will

                                5-3:1.1  Standing

                                5-3:1.2  Service/Timing

                5-3:2      After Probate of Will—Verified Complaint and Order to Show Cause

                                5-3:2.1  Standing

                                5-3:2.2  Time in which to Challenge

                                5-3:2.3  Verified Complaint and Order to Show Cause

                                5-3:2.4  Management of Estate During Will Contest


5-4          Will Contests—Substantive Issues / Grounds to Contest a Will

                5-4:1      Non-Compliance with Formalities of Execution

                                5-4:1.1  Written Form

                                5-4:1.2  Testator’s Signature

                                5-4:1.3  Witnesses

                                5-4:1.4  Self-Proving Affidavit

                                5-4:1.5  Testamentary Intent

5-4:2      Exceptions to Statutory Formalities of Execution of Wills

5-4:2.1  Doctrine of Substantial Compliance        

5-4:2.2  Writing Intended as a Will

5-4:2.3  Traditional Holographic Will        

5-4:2.3a                Intent

5-4:2.3b                Material Provisions

5-4:2.3c                Signature

5-4:2.3d                Holographic Codicil

5-4:3      Testamentary Capacity

5-4:3.1  Burden of Proof

5-4:3.2  Standard for Capacity

5-4:3.3  Insane Delusion

5-4:3.4  Adjudication of Incapacity

5-4:3.5  Evidence Regarding Testamentary Capacity

5-4:4      Undue Influence (Coercion/Duress)

5-4:4.1  Definition

5-4:4.2  Initial Burden of Proof and Presumption of Undue Influence

5-4:4.2a                Confidential Relationship

5-4:4.2b                Suspicious Circumstances

5-4:4.3  Rebutting the Presumption of Undue Influence

5-4:5      Fraud

5-4:6      Mistake

5-4:7      Forgery

5-4:8      Will Republication

5-4:9      Will Alteration

5-4:10    Will Revocation

5-3:3.10a              Dependent Relative Revocation

5-3:3.10b             Revival of Revoked Will

5-4:11    Pre-Death Will Contests


5-5          Will Construction

5-5:1      Overview of Will Construction

5-5:2      Conflicts of Law

5-5:3      General Principles of Will Construction

5-5:3.1  Doctrine of Probable Intent

5-5:3.2  Reformation

5-5:3.3  Conflicting Provisions

5-5:3.4  Codicil

5-5:3.5  Lapse

5-5:3.6  Abatement

5-5:3.7  Ademption

5-5:3.8  Classification of Testamentary Gifts

5-5:3.8a                Bequest

5-5:3.8b                Specific

5-5:3.8c                General

5-5:3.8d                Demonstrative

5-5:3.8e                Residuary

5-5:3.8f Fractional and Pecuniary Bequests

5-5:3.9  In Terrorem Clause

5-5:3.9a                Purpose

5-5:3.9b                History of In Terrorem Clause in New Jersey

5-5:3.9c                Enforcement of In Terrorem Clause

5-5:3.9d                What Constitutes Contest

5-5:3.9e                Other Jurisdictions

5-5:3.9f Importance

5-5:3.10                Power of Appointment

5-5:3.11                Tax Allocation

5-5:4      Action to Construe Will

5-5:4.1  Jurisdiction

5-5:4.2  Authority

5-5:4.3  Practice


5-6          Actions Against Will

5-6:1      Elective Share

5-6:1.1  General: Spouse’s Elective Share

5-6:1.2  The Augmented Estate

5-6:1.3 Calculation of Elective Share

5-6:1.4  Valuation for Elective Share

5-6:1.4a                Valuation of Decedent’s Probate Estate and Transfers Made by Decedent

5-6:1.4b                Valuation of Surviving Spouse’s Independent Property and Transfers

5-6:1.5  Reduction for Death Taxes

5-6:1.6  Entitlement to Income

5-6:1.7  Value of Life Estate

5-6:1.8  Proceeding to Recover an Elective Share

5-6:1.9  Waiver of Elective Share

5-6:2      Spouse Omitted in Will

5-6:3      Children Omitted in Will


Chapter 6           

Litigation Involving Non-Probate Assets

6-1          Non-Probate Assets

6-2          Joint Accounts: Multiple-Party Deposit Account Act

6-3          Uniform T.O.D. Security Registration Act

6-4          Life Insurance

6-5          Retirement Plans


Chapter 7

Divorce, Annulment and Death (New Chapter)

7-1          Death During Divorce Proceeding

7-1:1      Spouse Dies During Divorce Proceeding With a Will

7-1:2      Spouse Dies Intestate During Divorce Proceeding

7:1-3      Claims Surviving Divorce Proceeding Despite Death.

7-2          Death After Divorce

7-2:3      Divorce and Non-Probate Assets

7-2:3.1a                Life Insurance

7-2:3.1b                Life Insurance and Federal Law

7-2:3.2  Retirement Benefits

7-3          Alimony and Trusts

7-4          Child Support

7-4:1      Trusts

7-4:2      Child Support and Death of Parent


Chapter 8

Miscellaneous Probate Actions

8-1          Contracts to Make a Will or Bequest

8-2          Creditor’s Claims

8-2:1      Types of Creditor’s Claims

8-2:1.1  Claims Against Estate for Services Rendered

8-2:1.2  Recovery Under Quantum Meruit

8-2:1.3  Palimony

8-2:2      Presentation and Recovery of Claims

8-2:3      Priority of Claims

8-2:4      Trusts and Divorce

8-3          Insolvent Estates

8-4          Malicious or Intentional Interference with Expected Inheritance



Chapter 9

Issues Unique to Trust Litigation

9-1          Trusts

9-1:1      Venue for Trust Actions

9-1:2      Modification of Trusts

9-1:3      Termination of Trusts

9-1:4      Reformation of Trusts

9-1:5      Decanting of Trusts

9-2          Charitable Trusts vs. Private Trusts

9-3          Cy Pres Doctrine

9-4          Doctrine of Deviation

9-5          Resulting Trust

9-6          Constructive Trust


Chapter 10

Fiduciary Duties, Obligations and Liabilities

10-1       Fiduciary Duty

10-2       Standard  of Care

10-2:1    General

10-2:2    Investments

10-3       Exculpatory Clauses

10-4       Court’sPower to Override Governing Instrument

10-5       Removal of Fiduciary

10-5:1    Hostility

10-5:2    Conflict of Interest

10-5:3    Failure to Discharge Duties

10-5:4    Standard of Proof Required for Removal of Fiduciary

10-6       Delegation of Fiduciary Duty

10-7       Fiduciary and Bond

10-8       Surcharge of Fiduciary

10-9       Forfeiture of Commissions by Fiduciary

10-10     Punitive Damages Against Fiduciary

10-11     Attorney’s Fiduciary Duty in Estate Planning and Estate Administration

10-12     Legal Malpractice

10-12:1                 Attorney-Client Relationship

                10-12:1.1              Client in Estate Planning

10-12:1.1a           Estate Administration

10-12:1.2              Evidentiary Standard

10-12:1.3              Procedural Requirements for Legal Malpractice Action

10-12:1.3a           Statute of Limitations

10-12:1.3b           Affidavit of Merit

10-12:2                 Attorney-Client Privilege

10-12:3                 Joint Representation


Chapter 11


11-1       Purpose

11-2       Requirement to Formally Account

11-3       Release from Requirement to Formally Account

11-4       Compelling an Account

11-5       Failure to Render an Account

11-6       Informal Account

11-7       Procedure to Judicially Settle an Account

11-7:1    Verified Complaint

11-7:2    Service

11-7:3    Conflicts of Interest

11-7:4    Surrogate’s Audit and Report

11-8       Form of Account

11-8:1    Account Schedules

11-8:2    Principal and Income Recognition and Allocation

11-8:2.1                Principal Charges

11-8:2.1a              Receipts from Entities

11-8:2.1b             Receipts Allocated to Principal

11-8:2.1c              Principal Allowances

11-8:2.2                Income Charges

11-8:2.3                Income Allowances

11-8:2.3a              Beneficiary’s Right to Receive Income

11-8:2.3b             Disbursements from Income

11-8:3    Transfers Between Principal and Income

11-8:3.1                Trustee’s Power to Adjust

11-8:3.2                Trustee’s Liability to Beneficiary

11-9       Deceased Fiduciary’s Duty to Account

11-10     Removed or Discharged Fiduciary’s Duty to Account

11-11     Exceptions to Account

11-12     Effect of a Judgment Settling an Account

11-13     Fiduciary Commissions

11-13:1 Executor and Administrator Commissions

11-13:2 Trustee and Guardian Commissions

11-13:3 Fiduciary’s Affidavit of Service

11-14     Counse lFees


Chapter 12

Pre-Trial Issues

12-1       Overview of Discovery

12-2       Methods of Discovery

12-2:1    Oral Depositions of Party

12-2:2    Oral Depositions of Non-Party/Expert Witnesses and Treating Physicians

12-2:3    Written or Videotaped Depositions

12-2:4    Depositions in Estate Litigation

12-2:5    Interrogatories

12-2:6    Documents and Records

12-2:7    Request for Admissions

12-3       Failure to Comply with Discovery Requests

12-4       Privileges

12-4:1    Attorney–Client Privilege

12-4:2    Physician–Patient Privilege


Chapter 13


13-1       Pretrial Conference and Memorandum

13-2       Exchange of Information Between Parties and Court

13-3       Motions

13-3:1    In Limine Motions

13-4       Burden of Proof

13-5       Hearsay

13-6       Witnesses:Lay and Expert

13-7       Award o fCounsel Fees and Costs in Estate Litigation

13-7:1    American Rule

13-7:2    Probate Actions

13-7:3    Fund in Court

13-7:4    Accountings

13-7:5    Guardianship Actions

13-7:6    Counsel Fees as Damages

13-7:7    Counsel Fee Assessed Against Adversary

13-7:8    Procedure for Award of Counsel Fees and Costs

13-7:8.1                General Probate Litigation

13-7:8.2                Accountings


Chapter 14


14-1       Arbitration and Mediation

14-2       Settlement Agreements and Arbitration Awards

14-3       Agreement to Alter Interests Among Beneficiaries or Intestate Heirs

14-4       Acceleration and Termination of Trusts

14-5       Tax Consequences of Settlement

14-5:1    Federal Income Tax Consequences

14-5:2    Federal Estate and Gift Tax Consequences

14-5:3    New Jersey Inheritance Tax Consequences

14-5:4    Deductibility of Counsel Fees

14-5:5    Protective Claim for Refund


Chapter 15


15-1       Interlocutory Appeals to Appellate Division

15-2       Appeals to Appellate Division from Judgment or Order

15-2:1    Standard of Review in General

15-2:1.1                Standard of Review for Undue Influence

15-2:1.2                Standard of Review of Trial Court’s Decision in Removal of Fiduciary

15-2:1.3                Standard of Review for Denial of Counsel Fees

15-3       Issues Raised on Appeal

15-4       Appeal to New Jersey Supreme Court