Kenneth Vercammen, Esq is Chair of the ABA Estate Planning & Probate Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law.
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Kenneth Vercammen & Associates, P.C.

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Friday, May 11, 2018

A Will is presumed valid

A Will is presumed valid
In any attack upon the validity of a Will, it is generally presumed that "the testator was of sound mind and competent when he executed the Will." Gellert v. Livingston5 N.J. 65, 71 (1950). If there is a challenge to the Will, the Court will look to 
-who drafted the Will- example, was the Will drafted by a reputable attorney or a cheap homemade document [Will was prepared by Brian T. Keane Esq., a member of National Academy of Elder Law Attorneys, New Jersey Bar Association, The Florida Bar, Bergen County Bar Association.]
-did the person who typed the Will follow the instruction of the testator or the person who benefits from the Will [Mr. Loeffelman’s wife does not know Atty Keane]
who were the witnesses- example- employees of the attorney independent witnesses, friends of the testator, or friends of the persons who benefited [Witnesses were staff of Brian T. Keane Esq.]
The burden of establishing lack of testamentary capacity is on the one who contests the Will being offered for probate. This burden must be sustained by clear and convincing evidence. In re Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952). Furthermore, it is incumbent upon the caveator to establish lack of capacity at the time the Will was executed. Gellert v. Livingston, 5 N.J. 65, 76 (1950). Indeed, he must show that the disputed will was *4 the product of the decedent's insanity. In re Strittmater, 140 N.J. Eq. 94, 95 (E. & A. 1947).
"The burden of proving undue influence is upon the person asserting it and it must be clearly established." Gellert v. Livingston, supra,N.J.at 71; In re Will of Liebl, 260 N.J. Super.519, 527 (App. Div. 1992).If a Will is tainted by "undue influence," it may be overturned. 
"Undue influence" has been defined as "mental, moral or physical" exertion which has destroyed the "free agency of a testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Gellert,supra, 5 N.J.at 71; In re Blake’s Will, 21 N.J.50, 55-56 (1956); In re Dodge, 50 N.J.192 (1967); Haynes v. First National State Bank, 87 N.J.176 (1981); Pascale v. Pascale, 113 N.J.20 (1988). 
When such a contention is made the burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present, which require explanation. Id.In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent. Id.
         Two elements are necessary to create a presumption of undue influence. The first element necessary to raise a presumption of undue influence, a "confidential relationship" between the testator and a beneficiary, arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a Will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a Will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale,113 N.J. 20, 29-31 (1988).
           Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the Will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the Will, the law presumes undue influence and the burden is upon the proponent of the Will to disprove the presumption.In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955).
             
       Under influence was explained in In Re Probate of the Last Will and Testament of Catelli361 N.J. Super.478 (App. Div. 2003), Thomas was named executor of his Aunts Estate. The Aunt had a stroke and limited ability to speak and see and was paralyzed. Thomas had a power of attorney which he used to gift himself and his wife $10,000 and later created a trust which he used to his benefit. 
The Court found the combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The judge pointed to the fact that Thomas retained his own attorney to prepare the trust, where he knew his Aunt had an attorney, he prepared the documents without consultation to the testator, the documents were markedly different than what was provided for in the testator’s Will, the testator of debilitated and vulnerable, the effect of the documents immediately vested control of all assets of testator through and intervivos gift, and he dispensed substantial gifts through himself and his family. Thomas was unable to prove by a preponderance of the evidence that he did not assert undue influence on the testator.
     There is a legal presumption that "the testator was of sound mind and competent when he executed the Will." Haynes v. First Nat'l State Bank of N.J., 87 N.J.163, 175-76 (1981) (quoting Gellert v. Livingstonsupra, 5 N.J.at 71); In re Hoover,supra, 21 N.J.Super.at 325. The gauge of testamentary capacity is "whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the Will." Gellert v. Livingstonsupra, 5 N.J.at 73. 
Testamentary capacity is to be tested at the date of the execution of the Will. Id.at76. Furthermore, "as a general principle, the law requires only a very low degree of mental capacity for one executing a Will." In re Rasnick, 77 N.J. Super.380, 394 (Cty. Ct. 1962); seeLoveridge v. Brown, 98 N.J.Eq.381, 387 (E. & A.1925). "The burden of establishing a lack of testamentary capacity is upon the one who challenges its existence and that burden must be sustained by clear and convincing evidence." In re Hooversupra, 21 N.J. Super.at 325; accordIn re Rasnicksupra, 77 N.J. Super.at 395. A testator's misconception of the exact nature or value of his assets will not invalidate a Will where there is no evidence of incapacity. SeeIn re Livingston's Will, 37 A.770, 772 (Prerog. 1897); McCoon v. Allen, 45 N.J.Eq.708, 719 (Prerog. Ct. 1889); Collins v. Osborn, 34 N.J.Eq.511, 520 (Prerog. Ct. 1881). "Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity." 79 Am.Jur.2d Wills s. 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. "It is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] Will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property." In re Livingston's Willsupra.

                                                      Respectfully submitted,


                                                      KENNETH  VERCAMMEN

  Copyright 2018 Vercammen Law

Wednesday, February 14, 2018

Not criminal harassment to publish rude flyers State v. Burkert

Not criminal harassment to publish rude flyers
State v. Burkert (A-6-16)
This case tests the limits to which a broadly worded harassment statute, N.J.S.A. 2C: 33-4(c), can criminalize speech. 
William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons’ wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. 

Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than “get physical with the guy.”
The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons’ wedding photograph was “lewd and obnoxious,” and that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment. 

HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interferes with that person’s reasonable expectation of privacy. 
1. N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection (a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly committed acts” can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 149 N.J. 564 (1997). 
2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution. 
3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner.
4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” In cases based on pure expressive activity, the amorphous terms “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity. 
5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C: 33-4(c).  


Monday, December 25, 2017

New 2017 Expungement Law

New 2017 Expungement Law
By Kenneth Vercammen 
     The Senate Judiciary Committee reports favorably and with committee amendments Senate Law No. 3307.
     This law, as amended, would revise procedures for expunging criminal and other records and information, including the shortening of certain waiting periods before a person may seek an expungement and increasing the number of convictions, which may be expunged.
     Concerning the expungement of one or more criminal convictions, the law sets forth the following categories of eligible persons:
      - a person who has been convicted of one crime, and does not otherwise have any prior or subsequent conviction for another crime;
      - a person who has been convicted of one crime and less than four disorderly persons or petty disorderly persons offenses, and does not otherwise have any prior or subsequent conviction for another crime or for another disorderly persons or petty disorderly persons offense such that the total number of convictions for offenses exceeds three;
      - a person who has been convicted of multiple crimes, or a combination of multiple crimes and disorderly persons or petty disorderly persons offenses, all of which are listed in a single judgment of conviction, and the person does not otherwise have any prior or subsequent conviction for another crime or offense in addition to those convictions included in the person’s expungement application; or
     - a person who has been convicted of multiple crimes or a combination of multiple crimes and disorderly persons or petty disorderly persons offenses, which crimes or combination of crimes and offenses were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time (a so-called “crime spree”), regardless of the date of conviction or sentencing for each individual crime or offense, and the person does not otherwise have any prior or subsequent conviction for another crime or offense in addition to those convictions included in the person’s expungement application.
     If a person with one or more criminal convictions is eligible as described above for expungement relief, the expungement application may generally proceed so long as one of the following time period requirements is met:
      - six years have passed with respect to all aspects of satisfying the most recent conviction (six years from the date of conviction, payment of fine, satisfactory completion of probation or parole, and release from incarceration);
      - the payment of a fine, which is currently subject to collection under the State’s comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et seq.), is not yet satisfied due to reasons other than willful misconduct, but the six-year time requirement is otherwise met.   
      - the fine is satisfied, but six years have not passed since doing so, and the six-year time requirement is otherwise met; or
     - at least five but less than six years have passed with respect to all aspects of satisfying the conviction (this expedited expungement would also require, as it does under current law, the person to show that it is in the public interest to permit such expungement).
     As expressed in the law, the term “fine,” in reference to measuring any applicable time period requirement for determining the satisfaction thereof, means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with applicable law.  
     Whenever the court granted expungement relief to a person with an outstanding fine, the court would, utilizing the comprehensive enforcement program, provide for the continued collection of any amount owed that is necessary to satisfy the fine or for the entry of civil judgment for the outstanding amount.  Once the person’s records and information was expunged, information regarding the nature of such financial assessments or their derivation from expunged criminal convictions would not be disclosed to the public.  Any record of a civil judgment would be entered in the name of the State Treasurer, and administered by the State Treasurer in cooperation with the comprehensive enforcement program without disclosure of any information related to the underlying criminal nature of the assessments.
     The court, after providing appropriate due process, could nullify an expungement granted to a person with an outstanding fine if the person willfully fails to comply with an established payment plan or otherwise cooperate with the comprehensive enforcement program to facilitate the collection of any amounts that remain due.  In the event of nullification, the court could restore the previous expungement granted after the person complies with the payment plan or otherwise cooperates with the comprehensive enforcement program to facilitate the collection of any outstanding amounts owed.
     With respect to criminal convictions for the sale, distribution, or possession with intent to sell marijuana or hashish, the law amends the expungement law to establish general expungement eligibility for a low-level offender consistent with how such an offender’s crime is graded under the State’s Criminal Code.  This consistency would also apply to a young low-level offender (21 years of age or less at the time of the offense) who is granted special eligibility to make an expungement application after one year from the date of the conviction, termination of probation or parole, or discharge from custody, whichever date is later in time.  Eligibility would be extended to all such convicted offenders when the crime is graded as a crime of the fourth degree, based on the amount of the drug being:
     - less than one ounce of marijuana (the current law provides eligibility for a smaller amount, 25 grams (0.89 ounce) or less); or
     - less than five grams (less than 0.17 ounce) of hashish (the current law provides eligibility for a slightly higher amount of five grams (0.17 ounce) or less).
     The new amounts set forth in the law are derived from the amounts used to grade the crime as a crime of the fourth degree under the State’s Criminal Code.  See N.J.S.2C:35-5, subsection b., paragraph (12).  As such, this would create a legal consistency between expungement law eligibility and grading under the Criminal Code, such that any fourth degree crime involving the sale, distribution, or possession with intent to sell marijuana or hashish would be generally eligible for expungement, and in the case of a young offender, the special eligibility for expungement after a one-year time period would consistently apply.  This is not currently the case, because the amounts set forth in the expungement law are different than the amounts used to grade the crime.
     Concerning a person with one or more convictions for disorderly persons or petty disorderly persons offenses (but no criminal convictions), the law sets forth eligibility as follows:       
      - a person who has been convicted on the same or separate occasions of no more than four disorderly persons offenses, no more than four petty disorderly persons offenses, or a combination of no more than four disorderly persons and petty disorderly persons offenses, and the person does not otherwise have any prior or subsequent conviction for a disorderly persons or petty disorderly persons offense such that the total number of convictions for such offenses exceeds four;
      - a person who has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses, or a combination of multiple disorderly persons and petty disorderly persons offenses, which convictions were entered the same day, and the person does not otherwise have any prior or subsequent conviction for another offense in addition to those convictions included in the person’s expungement application; or
      - a person who has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses, or a combination of multiple disorderly persons and petty disorderly persons offenses, all of which were part of a “crime spree” (described in the same manner as above with respect to a spree which resulted in multiple criminal convictions).
      If a person with one or more convictions for disorderly persons or petty disorderly persons offenses is eligible as described above for expungement relief, the expungement application may proceed so long as one of the following time period requirements is met:
      - five years have passed with respect to all aspects of satisfying the conviction;
      - the fine is satisfied, but five years have not passed since doing so, and the five-year time requirement is otherwise met; or
      - at least three but less than five years have passed with respect to all aspects of satisfying the conviction (this expedited expungement would also require, as it does under current law, the person to show that it is in the public interest to permit such expungement, similar to the expedited “public interest” expungement process for criminal convictions).
     As is the case with an expungement involving one or more criminal convictions, the amendments provide that the term “fine,” in reference to measuring any applicable time period requirement for determining the satisfaction thereof, means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with applicable law.
     The law provides a one-time limit on a person receiving an expungement involving any criminal conviction (continuing the current law’s one-time limit), as well as a one-time limit for receiving an expungement of multiple convictions pertaining to multiple disorderly persons or petty disorderly persons offenses, which convictions were entered the same day or which convictions constituted a “crime spree.”  
     Finally, the law would remove a bar on expungement eligibility for any person with one or more convictions for crimes, disorderly persons offenses, or petty disorderly persons offenses, who, prior or subsequent to the conviction or convictions for which expungement is sought had criminal charges dismissed following the completion of a supervisory treatment or other diversion program.  The dismissal of criminal charges in such manner would no longer be an automatic bar to the person seeking and obtaining the relief of expungement.  However, even if the person is successful in expunging any convictions, the expunged records would remain available for subsequent review for purposes of determining whether to grant or deny the person another entry into a supervisory treatment or diversion program for new charges.  See N.J.S.2C:52-20 and 2C:52-27, subsection b.

      The committee amendments to the law:
      - update the categories of persons with one or more criminal convictions who would be eligible for expungement relief, as described above;
      - update the categories of persons with one or more convictions for disorderly persons offenses or petty disorderly persons offenses (and no criminal convictions) that would be eligible for expungement relief, as described above;
      - update the time period requirements that need to be met in order for a person to proceed with an application to expunge one or more convictions for a crime of offense, as described above;
      - provide that the term “fine,” in reference to measuring any applicable time period requirements for determining the satisfaction thereof for proceeding with an expungement application, means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with applicable law;
      - add provisions which would permit the court to nullify an expungement granted to a person with an outstanding fine if the person willfully fails to comply with an established payment plan or otherwise cooperate with the comprehensive enforcement program to facilitate the amounts that remain due, and only restore the expungement once the person complies with the payment plan or otherwise cooperates with the comprehensive enforcement program; 
     - revise the provisions in the underlying law to maintain the one-time limit on a person receiving an expungement for multiple convictions pertaining to multiple disorderly persons or petty disorderly persons offenses, which convictions were entered the same day or which convictions constituted a “crime spree” – the revision is an update to the descriptions of the various categories of persons who are eligible for expungement relief, making these descriptions consistent throughout the law;
     - remove a provision which would have permitted the sharing of expunged records with the Administrative Office of the Courts (AOC) concerning any on-going obligations to pay restitution - this provision is unnecessary, as the AOC is not directly involved in the collection or enforcement of any such obligations; and
      - provide for a delayed effective date, updated to be the first day of the tenth month next following enactment (instead of the third month), in order to provide additional time for the AOC to take necessary administrative action in advance of the law becoming law so that it can more effectively implement the reforms presented in the law.

         The Governor’s office said:
Three new expungement reform bills developed by Governor Christie and Senator Sandra Cunningham (D-Hudson) as part of their continuing bipartisan endeavor would prohibit employment discrimination based upon an expunged criminal record; accelerate expungements and increase the number of convictions that can be expunged; and reduce the waiting period to expunge an entire juvenile record.
“I commend Senator Cunningham for working with me on this legislation that will return many more recovering addicts to their families, as productive members of society and help break the costly cycle of recidivism,” Governor Christie said. “It prevents a childhood or adolescent mistake from ruining someone’s future, while still ensuring there are appropriate consequences for unlawful behavior and lessons are learned. These reforms represent a second chance at life for our family members, friends, neighbors and coworkers, and they provide the same opportunities we would desperately want for ourselves.”
“A minor criminal offense should not lead to a lifetime of punishment. These bills are about removing barriers for residents and helping them to overcome the obstacles that exist to finding employment, taking care of their families and setting their lives on the right path,” said Senator Cunningham. “I want to thank the Governor for being a partner in this important work. These bills are a great step to providing offenders with the second chance they deserve.”
Senate bill 3306 would strengthen New Jersey’s Opportunity to Compete Act, also known as “Ban the Box,” sponsored by Senator Cunningham and signed into law by Governor Christie in August 2014. S-3306 would prevent those with current and expunged criminal records from being discriminated against at the early stages of employment pursuits.

Senate bill 3307 would reform procedures for expunging criminal records by:

·       Allowing a petitioner to expunge up to four, instead of three, offenses or multiple offenses that occurred within a short timeframe, if the petitioner has not been convicted of any prior or subsequent offense;
·       Reducing the expungement eligibility waiting period from 10 years to six years, following the latest of any conviction, payment of fine and completion of probation, parole or prison sentence;
·       Further reducing the expungement eligibility waiting period if satisfaction of a fine or restitution is the petitioner’s only remaining barrier and the court finds that the expungement is in the public’s interest; and
·       Aligning expungement and sentencing statutes, allowing expungement for possession of marijuana with the intent to sell up to one ounce, which is the threshold for a fourth-degree crime.

Senate bill 3308 would decrease from five to three years the waiting period to expunge an entire juvenile record, maintaining all other requirements and provisions.

“These necessary, life-saving reforms for people who deserve a second chance should be immediately passed by the New Jersey legislature and replicated across the country, as I have heard loud and clear from the victims of this disease and their families, grassroots leaders, medical professionals, law enforcement officers and those in the criminal justice system, during my travels around this great state and nation,” Governor Christie said.