N.J.S.A. 3B:3-2 - Wills

                      N.J.S.A. 3B:3-2 provides that,

a. Except as provided in [N.J.S.A.] 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.

            Moreover, in In re Probate of Last Will and Testament of Catelli, 361 N.J. Super. 478 (App. Div. 2003), we stated that we appreciated

the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature.

[Id. at 483-84.]

           

needham v. hobbs

                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO.  A-6219-10T1

WILLIAM NEEDHAM and SUSAN

NEEDHAM,

                

            v.

MARCEY A. HOBBS,

                       

            and

MAY FUNERAL HOMES, INC.,

                       

_____________________________________________________

Telephonically Argued February 22, 2012 – Decided March 14, 2012

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-378-07.

Christie R. Nastasi argued the cause for appellants (Hoffman DiMuzio, attorneys; Ms. Nastasi, on the brief).

James J. Breslin, III, argued the cause for respondent (Law Offices of Barnaba & Marconi, attorneys; Mr. Breslin, on the brief).

PER CURIAM

            Plaintiff William Needham was injured when his automobile collided with an automobile driven by defendant Marcey A. Hobbs, who was a mourner in a procession being led by a funeral home through Delran on March 7, 2005.  Based on pre-filing research, plaintiffs assumed that W.R. Woody Funeral Home, Inc. (Woody) was leading the funeral procession and it was not until approximately four years after the accident that plaintiffs determined that the procession was led by May Funeral Homes, Inc. (May).  After permitting plaintiffs to replace a fictitious defendant with May, the trial judge granted May's motion to dismiss, holding that plaintiffs did not exercise due diligence in discovering May's identity and that May would be prejudiced by the late amendment.  Because the record supports plaintiffs' claim of due diligence and because there was insufficient evidence to support the judge's conclusion that May would be prejudiced if the action were to continue against it, we vacate the order of dismissal and remand for further proceedings.

            Plaintiff commenced this action on March 5, 2007, nearly two years after the automobile accident in question.  A police report prepared after the accident suggested that Hobbs was in a funeral procession traveling south on Route 130 in Delran.  Needham was waiting at a light at Route 130's intersection with Chester Avenue.  Apparently, when the light turned green, Needham's automobile proceeded into the intersection and collided with Hobbs's automobile.  The record on appeal provides little other information about the accident.[1]

            In their original complaint, plaintiffs named Hobbs and Woody as defendants, as well as fictitious persons and entities.  Prior to filing the complaint, plaintiffs' counsel determined that Woody had conducted a funeral procession on Route 130 on the day in question.  In answering the complaint, Woody denied the allegation that it was "the funeral home responsible for organizing and supervising the funeral procession" in which Hobbs was a participant because that allegation constituted "a conclusion of law."  In its answer, Woody claimed insufficient knowledge to either admit or deny the complaint's other chief allegations.  The depositions of four individuals who worked the funeral procession for Woody on the date in question were taken in March 2008.  These four Woody employees testified they were unaware that a vehicle in their procession was in an accident.

            Hobbs made no appearance in the case.  Default was entered against her and she did not respond to a subpoena seeking her testimony.  Without information from Hobbs and without affirmative proof from Woody that it did not lead the procession in question, plaintiffs continued to assume that all necessary parties were before the court.  Interestingly, in March 2009, an arbitrator found Hobbs 65%, Needham 25%, and Woody 10% responsible for the accident.  Apparently, Woody was unable or made no attempt to demonstrate at that time that it had no involvement in the procession.

            Hobbs finally, on June 12, 2009, appeared for a deposition and provided the name of the decedent whose funeral she had attended on the day in question.  As a result, plaintiffs' counsel was able to determine that May and not Woody had conducted the funeral procession.  Plaintiffs thereafter consented to a dismissal of the action against Woody and moved for leave to replace one of the fictitious defendants with May.  Leave was granted on July 1, 2009.  May moved for dismissal.  For reasons set forth in a written decision, the trial judge granted the motion and, once finality was achieved, plaintiffs appealed.[2]

            Plaintiffs' appeal turns on whether the filing of the amended pleading, in which May was first named as a defendant, should "relate back" to the date the original complaint was filed.  See, e.g., Greczyn v. Colgate Palmolive, 183 N.J. 5, 11 (2005); Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973).  Rule 4:26-4 allows a plaintiff to commence an action "against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification."  There is no doubt that plaintiffs complied with this aspect of the Rule.  The Rule, however, may be invoked "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint."  Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003).  In seeking dismissal, May asserted that plaintiffs failed to act with due diligence and that it would be prejudiced if the action were permitted to continue.

            In vacating the order of dismissal, we first conclude that the record supports plaintiffs' argument that they exercised due diligence in seeking to learn the name of the funeral home that was conducting the procession.  That investigation uncovered the fact that Woody conducted a funeral procession south on Route 130 on the day in question; it was logical for plaintiffs to assume that Woody was the proper funeral home to be named.  In fact, that conclusion was further cemented by Woody's response to the complaint.  Woody neither admitted nor denied its involvement in the funeral procession in question.  And four Woody employees, who worked a funeral procession on that day, took that same position.  Pending clearer evidence, plaintiffs remained justified in proceeding against Woody, a fact further suggested by an arbitrator's determination that Woody was 10% responsible for the accident.  Plaintiffs were entitled to adhere to their belief that Woody was the correct funeral home until Hobbs, who had permitted the case to proceed in her absence, finally came forward to give deposition testimony.  Once her testimony revealed the facts necessary to exonerate Woody and implicate May, plaintiffs expeditiously moved for leave to join May as a party.

            Plaintiffs' due diligence alone, however, is insufficient to justify reliance on the relation-back doctrine.  The dismissal of May was appropriate if May would be prejudiced by the late assertion of the claim.  The prejudice to which the Rule concerns itself is not a defendant's exposure "to potential liability for a lawsuit after the statute of limitations has run."  Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 631 (App. Div. 1997).  "[A]bsent evidence that 'the lapse of time has resulted in a loss of evidence[,] impairment of ability to defend' or 'advantage' to plaintiffs, '[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]'"  Claypotch, supra, 360 N.J. Super. at 482 (quoting Farrell, supra, 62 N.J. at 122).  On this aspect, the trial judge stated only the following:

Surely, the memories of the witnesses as to the occurrence have faded in the intervening years.  Further, the late amendment has prejudiced May Funeral Homes by preventing it from participating in meaningful discovery.

These conclusions were not based on any sworn information; the judge simply assumed memories had faded and May's ability to respond to plaintiffs' allegations would be unduly hampered.

            We conclude that the trial judge prematurely found prejudice.  Indeed, an understanding of the prejudicial effect of the late joinder is not entirely clear because the matter has not been examined in light of the nature of plaintiffs' claim against May.  The extent to which a funeral home may be liable for accidents involving an automobile in a funeral procession has not been widely considered.  See Ronald Schmidt, Liability for Injury or Damages Resulting from Operation of Vehicle in Funeral Procession or in Procession Which Is Claimed to Have Such Legal Status, 52 A.L.R.5th 155 (1997).  We considered the question in Giantonnio v. Taccard, 291 N.J. Super. 31, 41 (App. Div. 1996), concluding that, in "undertaking to organize and lead [a] funeral procession," a funeral home "arguably owe[s] a duty to refrain from creating an unreasonably hazardous condition for those participating in the procession."  We made no attempt, however, to further define the scope of liability.  Id. at 42 (stating that "[w]e offer no opinion respecting the substantive content of that duty, i.e., the standard of care owed by the funeral home").

            We have not since considered that standard of care nor need we do so here.  Our holding is limited to recognizing that the extent to which May may be prejudiced by its late joinder is inexorably linked to its ability to defend on the question of whether it owed a duty to plaintiffs and, if so, what that duty might be.  Until that question is addressed and adequately answered, any conclusion as to whether May would be prejudiced by the continuation of the suit is merely speculative.

            The second aspect of the judge's determination that May would be prejudiced by the late joinder -- i.e., May was prevented from engaging in meaningful discovery -- is within the judge's power to remedy.  Although discovery end dates are important, a judge remains empowered when justice requires to take appropriate steps to prevent a party from being prejudiced notwithstanding the age of the case or other court-imposed barriers.  Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003); see also Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 93 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).  If, upon further examination, the judge finds no other basis for concluding that May will be prejudiced, May should be permitted a reasonable period of time to conduct whatever discovery may be appropriate in light of these circumstances. 

            Absent a finding that May would be prejudiced in the manner discussed above, "[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]"  Farrell, supra, 62 N.J. at 122.

            The order of dismissal is vacated and the matter remanded for further proceedings in conformity with this opinion.  We do not retain jurisdiction.

---

[1]After the complaint was dismissed as to May, the remainder of the case settled.

[2]We denied plaintiffs' earlier motion for leave to appeal.  As noted earlier, the remaining parties settled and plaintiffs filed this appeal.

Nuts & Bolts of Elder Law & Estate Administration Seminar

Nuts & Bolts of Elder Law & Estate Administration Seminar

Wed, Apr 25 5:00 PM - 9:00 PM New Jersey Law Center One Constitution Square New Brunswick, NJ 08901

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.

This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice.

Everything you need to know about elder law & estate administration including:


• Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?


• Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms


• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms


• Basic Tax Considerations - Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters


• Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists


• Medicaid Planning in Light of Federal Medicaid Reform - Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules; probate; undue influence; competency
…and more

Includes a 400 page book, CD with sample forms, documents & checklists!

Speakers:

KENNETH A. VERCAMMEN, ESQ.

Chair, ABA Elder Law Committee Past GP Solo Section Attorney of the Year 2006 NJSBA Municipal Court Practitioner of the Year K. Vercammen & Associates

WILLIAM P. ISELE, ESQ.

Past NJ Ombudsman for the Elderly

MARTIN A. SPIGNER, ESQ.

Law Office of Martin A. Spigner Adam Dubeck ,Esq.

$170.00 General Tuition Seminar #S57800S2

NJSBA Member Price is reduced – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.

Registration http://www.njicle.com/viewprogram.aspx?catid=2097&progid=6218

More details contact New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of 
The New Jersey State Bar Association Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 • Fax: (732)249-0383 • CustomerService@njicle.com

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 4.6 hours of total CLE credit. Of these, 1.2 qualify as hours of credit for ethics/professionalism.


Presented in cooperation with the NJSBA Elder & Disability Law Section and NJSBA Young Lawyers Division

2012 update Wills and Estate Planning- Free Seminar

2012 update Wills and Estate Planning

Seminar materials

Compiled by Kenneth Vercammen

1. Federal Estate Tax increased to Estates over $5,000,000, but New Jersey taxes estates over $675,000.

2. Non-formal writings could be Wills under the New Probate Law

3. The recommendation for Self- Proving Wills

4. Revised statute requires Palimony agreements to be in writing.

5. Recent case can void Will signed under suspicious circumstances

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person.

1. Federal Estate Tax increased to Estates over $5,120,000, but New Jersey taxes estates over $675,000.

The Federal estate tax was reinstated for 2011 and 2012. The exemption amount will be $5 million per individual in 2011 and was indexed to inflation in 2012 to $5,120,000,. Estates of people who died in 2010 can choose to follow either the rules in effect for 2010 or 2011.

The Act sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year.

New Jersey has an Estate Tax on amounts over $675,000. So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.

So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but

the Estimated State Estate Tax: $33,200.00

For an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000

2. Non formal writings could be Wills under the Revised Probate Law, so make sure you have a Formal Will drafted without notations written on it.

SENATE Law No. 708 made a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.

The adoption of portions of the Uniform Probate Code attempted to bring greater uniformity to the rules governing testamentary and non-testamentary transfers to make most state laws similar.

The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.

To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.

Be careful; have a Will done properly by an experienced attorney.

3. We recommend Self- Proving Wills

An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.

The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.” In such a Will, the person for whom the Will is made must sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.

When done properly, the executor does not have to locate any witnesses. This usually saves time and money. If your Will is not “self-proving” or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows 1978 laws.

Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if in a 2^nd marriage

The elective share provisions of the present Code has still not been changed yet. Currently, a spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a caveat or lawsuit in Superior Court. We suggest a formal prenuptial agreement in 2^nd marriage situations.

A Testator now means both male and female individuals, removing the term “Testatrix”. Will forms used by attorneys will need to be revised.

The law provides a statute of limitations with respect to creditor claims against a decedent's estate. There is no longer a need to publish a Notice Limiting Creditors.

4. Revised statute requires Palimony agreements to be in writing.

This law is intended to overturn recent "palimony" decisions by New Jersey courts by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the law provides that a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed. The law provides that no such written promise is binding unless it was made with the independent advice of counsel for both parties.

This law eliminates the holdings of two cases, Devaney v. L’Esperance, 195 N.J. 247 (2008) and In re Estate of Roccamonte, 174 N.J. 381 (2002), the New Jersey Supreme Court upheld palimony agreements between two unmarried cohabitants. In the Devaney case the court held that “cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In the Roccamonte case, the court held that an implied promise of support for life is enforceable against the promisor’s (cohabitant’s) estate.

The new palimony law almost totally eliminates palimony in NJ.

5. Supreme Court held Will could be void if signed under suspicious circumstances

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 undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person. The amount permitted for Medicaid transfers is zero.

7. NJ Inheritance tax

The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised in September, 2011. Throw out old forms. Even if no inheritance tax due, a Tax Waiver on a house must be obtained and filed if the house was not co-owned by the spouse.

8. Power of Attorney

Do not use a form purchased online, unless it contains reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

9. Federal Health Privacy Law (HIPAA)

A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.

The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.

Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.

Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.htm

After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.

More information on Wills and Probate at

http://www.njlaws.com/more_articles_on____.asp?Category=Wills_and_Probate

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

More information at www.CentralJerseyElderLaw.com