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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documents, or engaged in probate litigation, New Jersey Estate & Trust Litigation will navigate the case law and unpublished decisions and procedure you’ll need to know.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.

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 Action Against a Trustee
1-6:9 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 36
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: Guardianships
3-1 INCAPACITATED PERSONS
3-1:1 Jurisdiction
3-1:2 Procedure
3-1:3 Substantive Aspects
3-2 MINORS
3-2:1 Jurisdiction—Domicile
3-2:2 Procedure—Court Rules/Statute
3-2:3 Substantive
3-2:4 Kinship Legal Guardianship
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: Litigation Involving 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
5-3:2 After Probate of Will—Verified Complaint and Order to Show Cause
5-4 WILL CONTESTS—SUBSTANTIVE ISSUES/GROUNDS TO CONTEST A WILL 
5-4:1 Non-Compliance With Formalities of Execution
5-4:2 Exceptions to Statutory Formalities of Execution of Wills
5-4:3 Testamentary Capacity
5-4:4 Undue Influence (Coercion/Duress)
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
5-4:11 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
5-5:4 Action to Construe Will
5-6 ACTIONS AGAINST WILL
5-6:1 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
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 Proceedings Despite Death
7-2 DEATH AFTER DIVORCE
7-2:1 Divorce and Non-Probate Assets
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
8-2:2 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
8-5 INTERMENT AND DISINTERMENT ACTIONS

Chapter 9: Issues Unique to Trust ­Litigation
9-1 TRUSTS
9-1:1 New Jersey Uniform Trust Code
9-1:2 Creation and Validity of Trusts
9-1:3 Venue for Trust Actions
9-1:4 Beneficiaries
9-1:5 Representation of Minors, Mentally Incapacitated Persons, or Unborn Children in Trust Proceedings or Transactions
9-1:6 Modification of Trusts
9-1:7 Termination of Trusts
9-1:8 Reformation of Trusts
9-1:9 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’S POWER 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 LIABILITY OF TRUSTEES
10-9 SURCHARGE OF FIDUCIARY
10-10 FORFEITURE OF COMMISSIONS BY FIDUCIARY
10-11 PUNITIVE DAMAGES AGAINST FIDUCIARY
10-12 ATTORNEY’S FIDUCIARY DUTY IN ESTATE PLANNING AND ESTATE ADMINISTRATION
10-13 LEGAL MALPRACTICE
10-13:1 Attorney-Client Relationship
10-13:2 Attorney-Client Privilege
10-13:3 Joint Representation
10-14 FINANCIAL INSTITUTIONS

Chapter 11: Accounting
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
11-8:3 Transfers Between Principal and Income
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 COUNSEL FEES

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: Trial
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 OF COUNSEL 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

Chapter 14: Settlement
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 NON-JUDICIAL SETTLEMENT AGREEMENTS RELATING TO TRUSTS
14-5 ACCELERATION AND TERMINATION OF TRUSTS
14-6 TAX CONSEQUENCES OF SETTLEMENT
14-6:1 Federal Income Tax Consequences
14-6:2 Federal Estate and Gift Tax Consequences
14-6:3 New Jersey Inheritance Tax Consequences
14-6:4 Deductibility of Counsel Fees
14-6:5 Protective Claim for Refund

Chapter 15: Appeals
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
15-3 ISSUES RAISED ON APPEAL
15-4 APPEAL TO NEW JERSEY SUPREME COURT

Forms
Table of Cases
Index