Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen & Associates,
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 More information at

Sunday, August 17, 2008

In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)

Argued October 9, 2007 -- Decided July 22, 2008HOENS, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.

Madeleine Stockdale, the testatrix, owned a large home on Monroe Avenue in Spring Lake. Following her husband's death and despite her considerable wealth, she lived frugally and her house eventually fell into disrepair. She talked of selling her home to someone who would restore the home to its former grandeur and agree not to subdivide it. Stockdale was distant from others and distrustful, believing that they were only interested in her for her money. She had no children and no family except for two nephews, George and Peter Lawrence, with whom she had little contact. Stockdale was reclusive, associating with only a few people whom she considered to be her "acquaintances." The Pattersons and the DiFeos were among Stockdale's acquaintances and, in general, they looked after her. Stockdale was impressed with the good work of the volunteers of the Spring Lake First Aid Squad (SLFAS). She intended to leave her entire estate to charity out of respect for the selfless acts of kindness and because it would keep her assets away from the control of the government and limit estate taxes.

In September 1997, Stockdale listed her home for sale for the price of $1.4 million. A neighbor, Ronald Sollitto, was interested in the Stockdale home. He introduced himself directly to Stockdale and shortly thereafter, he and his wife began to help Stockdale around her home and to bring her food, continuing to express how much they liked her home.

In March 1998, Stockdale executed the first of the two wills ("1998 Will") that were eventually offered for probate and that are at the center of this appeal. At that time, Stockdale was in her late 80's or early 90's, was living alone in the Monroe Avenue house, and was in declining health. The 1998 Will was prepared by William Soons, the attorney who handled Stockdale's legal affairs. The 1998 Will named Soons and Peter Kuzmick co-executors of her estate. Stockdale directed that her home be sold on her death and that the proceeds be included in her residuary estate. The 1998 Will also included a substantial number of specific bequests and named SLFAS as the residuary beneficiary.

On the same day that the 1998 Will was executed, Stockdale entered into a new listing agreement for the sale of her home at a price of $1.65 million. In March 1999, Sollitto made an offer on the home that Stockdale rejected; nonetheless, the two continued to discuss Sollitto's purchase of the home. Sollitto claims he promised that he would not subdivide the property; would restore the home to its original grandeur; and would allow Stockdale to remain in the home until she was ready to leave. Although none of these promises was reduced to writing, Stockdale was induced to sign a proposed contract to sell the property to Sollitto for $1.3 million. That contract was prepared by Thomas Foley, an attorney retained by Sollitto. The contract made no mention of the various promises Sollitto had made to Stockdale and included a variety of terms that were unfavorable to her. Stockdale retained Soons to review the contract and to represent her in the sale of her home. Soons contacted Foley in respect of his concerns about the unfavorable terms in the contact. Rather than continuing the negotiations with Soons, Foley prepared an addendum to the contract and gave it to Sollitto, who brought it directly to Stockdale for her signature. Soons was led to believe that the deal was off, even though the parties continued to move forward with the agreement.

In December 1999, Stockdale fell and broke her hip, causing a further deterioration in her already declining health. She was eventually transferred to a rehabilitation facility where Sollitto visited and continued to discuss the pending house sale. Sollitto sent Michael A. Casale, a very close personal friend, to advise Stockdale on the sale. On December 21, 1999, Casale visited Stockdale at the rehab facility but did not reveal his very close personal relationship with Sollitto. According to Casale, Stockdale told him that she wanted to sell her home to Sollitto because he would not demolish it. Casale stated that she asked about a power of attorney and declared her desire to change her 1998 Will. Casale met with Stockdale again on December 27, 1999 where, according to Casale, Stockdale agreed to accept $50,000 from Sollitto at closing, with the remainder of the purchase price to be paid through a note and purchase money mortgage at 5% interest, which was two to three points below the current market rate. Casale testified that Stockdale had crossed out the clause in the 1998 Will leaving her residual estate to the SLFAS because she no longer wanted to leave them her money. On or about December 29, 1999, Casale met with Stockdale for a third time at which time Casale claims Stockdale decided to make Sollitto her residual beneficiary and replace her existing co-executors with Casale as the sole executor of the estate. In addition, she agreed to put a provision in her new will to forgive any mortgage debt that might be owed. Casale and Sollitto spoke regularly after Casale's meetings with Stockdale.

Because of Stockdale's imminent throat surgery, Casale executed the new will and closing documents on January 3, 2000 without the assistance or presence of Sollitto's attorney. The employees of the rehab facility who witnessed the signing of the new will ("2000 Will") were unable to testify whether Stockdale had the requisite testamentary capacity, although the facility's director did testify that Stockdale likely did not have the requisite capacity based on her ingestion of pain medication and her increased signs of confusion. On that day, Stockdale also signed a deed ("2000 Deed") transferring to Sollitto title to her house.

Once discharged from the rehab facility, Sollitto eventually moved Stockdale to an apartment that he rented in her name, secluded from her acquaintances. He and his family had moved into the Stockdale's home. In early February, Sollitto wrote a check to pay for utility charges on the Monroe Avenue home using his Power of Attorney to access Stockdale's funds. The record also shows that Sollitto removed Stockdale's antique furniture and pictures from her home. At the time of her death in April 2000, the Monroe Avenue home was worth significantly more than the purchase price. Moreover, Stockdale's estate taxes under the 2000 Will were considerably more than what would have been owed under the 1998 Will.

On March 1, 2000, Casale offered the 2000 Will for probate; on April 28, 2000, Soons, unaware of the existence of the 2000 Will, offered the 1998 Will for probate. Shortly thereafter, SLFAS, the residuary beneficiary under the 1998 Will, lodged a caveat against the 2000 Will. Casale filed a complaint in the Probate Part, seeking to dismiss the caveat and admit the 2000 Will to probate. SLFAS answered the complaint and filed a third-party complaint against Sollitto and Casale, claiming that the 2000 Will was procured by undue influence and fraud, and that the inter vivos transfer of the title to Stockdale's home by deed was similarly flawed. SLFAS sought both compensatory and punitive damages, together with attorneys' fees. Stockdale's previously disinherited nephews were allowed to intervene in the matter to protect any potential interests in the estate.

Following extensive discovery and a lengthy trial, the probate judge found that Sollitto and Casale were not credible and that Stockdale's 2000 Will was unenforceable as a product of undue influence. The probate judge also found that the 2 000 Deed and the 1999 real estate contract ("1999 Contract of Sale") transferring Stockdale's property to Sollitto were invalid as a product of undue influence and "sharp dealing." The judge set aside the 2000 Deed, voided the 1999 Contract for Sale, sustained the caveat, rejected the 2000 Will, and directed that the 1998 Will be admitted to probate. Relying on this Court's decision in In re Niles, the judge awarded SLFAS attorneys' fees as a form of punitive damages, finding that undue influence is a form of intentional tort that provides the basis for awarding punitive damages. Sollitto and Casale were required to pay attorneys' fees to SLFAS in the amount of $1,174,264.87.

The Appellate Division affirmed all but the award of attorneys' fees, remanding for consideration of punitive damages, noting that the trial court was mistaken in its view that an award of attorneys' fees under Niles is or may be a substitute for punitive damages.

The Supreme Court granted certification.

HELD: Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.

1. In a probate matter, the burden of proving undue influence ordinarily is on the will contestant. However, when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. If there is a conflict of interest on the part of an attorney coupled with confidential relationships between testator and the beneficiary as well as the attorney, the presumption must be rebutted by clear and convincing evidence rather than a preponderance of the evidence. An attorney-client relationship is inherently a confidential relationship and because suspicious circumstances need only be slight, the existence of that relationship often results in both the shifting of the burden and the imposition of a clear and convincing standard of proof. (Pp. 30-34)

2. In probate matters, a tort-based claim can only arise if someone has acted so as to deplete or reduce the estate of its assets. In probate proceeding, there is generally neither compensatory damage-type award nor, by extension, the underpinnings needed for imposition of a punitive award. (Pp. 33-37)

3. In Niles, the Court emphasized New Jersey's strong public policy against shifting counsel fees from one party to another. A narrow exception exists for circumstances in which the executor or trustee commits the tort of undue influence that would enable the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate. There is also the possibility of a punitive damage award arising from the "pernicious tort of undue influence." However, the availability of that remedy is limited to those situations in which ordinary remedies for breach of fiduciary duty will not lie or will be inadequate. The remedy is limited to situations were one who is essentially a stranger to the testator gains access to her through undue influence and then carries out a scheme to place himself into a position to seize control of that testator's assets through inter vivos transfer or by bequest. Any punitive damage award arising in the Probate Part must be in compliance with the Punitive Damages Act. This remedy will be infrequent, limited to circumstances in which the actor is not entitled to take from the estate by inheritance or through commissions, and thus an accounting and a surcharge remedy will be inadequate to restore the estate to its proper balance. (Pp. 37-45)

4. Sollitto and Casale were strangers to Stockdale, thus the surcharge remedy would be insufficient. There are distinctions between this matter and Niles. Because the claim in this case was brought by a putative beneficiary rather than by the substitute executor, no counsel fee could be awarded. The record includes ample facts and circumstances that would support a compensatory award and, potentially, a punitive one as well. Only the apparent confusion about the parameters of the available remedies prevented the Probate Part and the Appellate Division from engaging in the appropriate analysis of the record. It may well be that a punitive award is appropriate. It is left to the sound discretion of the Probate Part to consider the record in light of the Court's further guidance. (Pp. 45-51)

Judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is remanded to the Chancery Division, Probate Part, for further proceedings consistent with this opinion.

Tuesday, August 05, 2008

Elder Law 2008- Expanding and Marketing an Elder Law Practice

Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York

Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA

Charles Sabatino, director of the ABA's Commission on Law & Aging

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Joan Burda, Ohio

Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's Experient at 800-421-0450 or at for registration & tickwets to events

2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030