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. Livingston, 5 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,5 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. Livingston, supra, 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. Livingston, supra, 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 Hoover, supra, 21 N.J. Super.at 325; accordIn re Rasnick, supra, 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 Will, supra.

                                                      Respectfully submitted,

                                                      KENNETH  VERCAMMEN

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