Attorney Grievance Filed Against Blogging Lawyer Dismissed on First Amendment Grounds

In a recent blog post, I wrote about Steven Gursten, a Michigan blogging lawyer who published a blog post in 2014 wrote about Dr. Rosalind Griffin, a Michigan psychiatrist who testified as a medical expert for the defense in various personal injury cases Gursten filed. Attorney Gursten claimed that Dr. Griffin was one of the "notorious" Michigan doctors who, he said, was known to inappropriately aid the defense by preparing biased medical reports. Gursten asked readers to decide whether Dr. Griffin perjured herself based on several detailed examples from transcripts of her testimony in his cases which he posted online on his blog. In response, Dr. Griffin filed a grievance against attorney Gursten claiming that his blog post constituted "conduct [that] involves dishonesty and misrepresentations which reflect adversely on his honest, trustworthiness and fitness as a lawyer," and also that the blog post was "prejudicial to the administration of justice" in that it portrayed the legal system in a bad light. At the time I wrote the blog article, the grievance was pending.

Since that time, the State of Michigan Attorney Grievance Commission dismissed the grievance. In its letter to Dr. Griffin, the Attorney Grievance Commission announced that "no further action" would be taken on her grievance. The Commission explained that the postings on Gurstein's blog constituted protected speech under the state and federal constitutions:

The information Attorney Gursten posted on his blog constitutes protected speech under the Michigan and United States Constitutions.

In a post on his blog, Attorney Gursten noted that the Attorney Grievance Commission's ruling in his case was "one of the first reported instances where what an attorney has written is found to be constitutionally 'protected speech.'"

Although he prevailed, Attorney Gursten indicated in his blog post that he paid a real cost in defending against the grievance:

I did have to hire a lawyer to defend me, incur attorney fees and lose considerable time from my own legal practice to respond to this grievance - a response which was demanded or would be considered misconduct. I also have a very uncomfortable feeling that if this grievance had not received the legal attention and media scrutiny that it did, that an investigation would have been initiated. Just forcing me to respond to this grievance creates a dangerous 'chilling effect' for other lawyers and for their own willingness to speak out, lest they be the victim of a grievance and the costs, time and threat of sanction responding to one. For this, we all lose out and damage has already been done.

Attorney Gursten ends his story about the attorney grievance appropriately, with a call to action:

I will continue to speak out against this. I hope other attorneys will now speak out against this and other important issues that impact the public as well, hopefully knowing that we have the same rights to protected speech under the First Amendment as everyone else.

You fought the good fight and won, Steve. Thank you.

The Law Office of Donald D. Vanarelli website: http://vanarellilaw.com/

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Gifts that Strip the Donor of Virtually All His Assets, and Gifts to a Donee on Whom the Donor Depends Indicate Undue Influence

In this case, the New Jersey Supreme Court held that gifts giving rise to a presumption of undue influence include gifts that strip the donor of all or virtually all his assets, and gifts to a donee on whom the donor depends. Pascale v Pascale, 113 N.J. 20 (1988)

In 1939, plaintiff, John J. Pascale, founded a machine tool and die business, later incorporated under the name Quality Tool & Die Company Inc. (Quality). In 1952, plaintiff established a second, smaller machine tool company which operated out of Quality's premises in Hoboken. By 1960, both businesses had become quite profitable.

Plaintiff had two sons, John Jr. and David. After he divorced his sons' mother, plaintiff had a falling out with John Jr. Thereafter, plaintiff's intention was to leave all of his business assets to David with minimal tax impact. The plan was for plaintiff to give the Hoboken properties and the Quality stock to David, with David paying the gift taxes.

Both David and a tax attorney, Bernard Berkowitz, who created and executed the plan, claimed that Pascale understood that by agreeing with this plan, he would be yielding control of Quality to David. In 1979, plaintiff signed various documents, including two stock certificates of Quality: one that described plaintiff as the owner of 310 shares, and the other that described David as the owner of 310 shares. Plaintiff also signed an assignment transferring his 310 shares of Quality to David, a deed from plaintiff and Quality conveying the Quality premises in Hoboken to David, and an affidavit of consideration.

Relations between David and Pascale cooled when plaintiff first learned that he was no longer in control of Quality. In 1982, David fired plaintiff, and David ordered plaintiff to leave the Quality premises. Plaintiff filed a lawsuit claiming that he did not understand that the documents he signed in 1979 effected an outright transfer of the Quality stock and real estate to David.

The testimony at trial was in sharp conflict. Confronted with this conflicting testimony, the Superior Court, Chancery Division, Hudson County rejected plaintiff's claims and held that Pascale was not entitled to rescind the 1979 transfers. The trial court found that plaintiff was "in full possession of his mental and physical faculties," and had no "mental indisposition, psychological dependence, or lack of knowledge, comprehension or understanding on his part with respect to the gift transfers to David." The court entered judgment for David and plaintiff appealed.

The Appellate Division reversed and remanded the case to the trial court. The appeals court found that a confidential relationship existed between plaintiff and David, and that Berkowitz was in a position of conflict when he advised plaintiff to execute the transfers. It therefore found that the trial court incorrectly failed to place on David "the burden of showing by clear and convincing evidence that his father intended to make a gift and unmistakenly intended to relinquish permanently the ownership of the companies and property."

The Supreme Court granted certification. Thereafter, the Supreme Court found in favor of David, holding that: (1) plaintiff's delegation of his financial and legal affairs to David evidenced that plaintiff reposed trust and confidence in David, and this trust and confidence was sufficient to give rise to presumption of undue influence when plaintiff transferred corporate stock to David; (2) attorney Berkowitz, who represented both plaintiff and David at time plaintiff transferred corporate stock to David, was in position of conflict and failed to comply with disciplinary rule requirement that he fully disclosed conflict; and (3) David rebutted the presumption of undue influence although plaintiff did not have independent counsel in transferring stock to David with whom he had confidential relationship.

When discussing the nature of gifts that give rise to a presumption the donor was the victim of undue influence, the Supreme Court held as follows:

If the donor is dependent on and makes an 'improvident gift' to the donee that strips the donor of all or virtually all his assets, a presumption arises that the donor did not understand the consequences of his act. . . . In this context, the donee must show that the donor 'had the benefit of competent and disinterested counsel.' . . . A similar rule applies when a physically or mentally weakened donor, without receiving any advice, makes a gift to a donee on whom the donor depends. If that gift leaves the donor without adequate means of support, the presumption of undue influence is conclusive. [Citations Omitted]

The case is annexed here - Pascale v Pascale

For additional information concerning undue influence lawsuits, visit: http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc

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Where to Find the Final Decisions issued by all New Jersey administrative agencies

Readers of this blog know that applicants for public benefits often appeal the decisions made by the various administrative agencies involved in providing benefits. Applicants appeal for various reasons, usually based on the outright denial of benefits or an award of fewer benefits than anticipated. The appeals are considered and decided by administrative law judges (ALJ) employed by the Office of Administrative Law. The Director of the state agency involved may be empowered to make the ultimate decision on an appeal. The bulk of the law governing state agencies is administrative in nature resulting from these ALJ decisions.

All Final Agency Decisions issued by New Jersey's ALJs can be accessed on the State website. The case's come from various state agencies, including the Division of Medical Assistance and Health Services, the Division of Disability Services, the Division of Aging Services, the Commission for the Blind & Visually Impaired, Division of the Deaf and Hard of Hearing, the Division of Developmental Disabilities, the Division of Family Development, and the Division of Mental Health & Addiction Services. Here's a link to all the Final Agency Decisions issued by the various State Agencies: http://bit.ly/1k02so3. Happy reading!

Decisions may also be found in New Jersey Administrative Reports (N.J.A.R.2d). For decisions prior to July 1, 2014, follow this link http://njlaw.rutgers.edu/collections/oal/

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New Brochure on Elder Abuse by Caregivers

Download (PDF, 334KB)

Caring for an elderly or disabled person frequently involves strenuous physical tasks as well as managing financial matters, organizing care, and more. As a result, caregivers may feel frustrated, isolated, stressed and overwhelmed. Although these feelings are perfectly normal, they can be harmful to both the caregiver and the person needing care. Over time, elder abuse may be the result.

Elder abuse refers to intentional or neglectful acts by a caregiver or "trusted" individual that can lead to harm of a vulnerable elder. Neglect is the most common form of elder abuse, followed by psychological, financial, physical, and sexual abuse. In many situations, abuse can happen subtly and escalate over time. One outburst can lead to multiple outbursts or verbal abuse. The majority of elder abuse occurs in the home, and the abuser is a family member in 90% of all elder abuse cases.

Interestingly, the National Center on Elder Abuse (NCEA) released a new brochure for family caregivers on how to advocate for family members who need care. (I got the facts in the first two paragraphs of this post from that brochure.) The brochure was developed using input from actual family caregivers of people with dementia. The brochure provides information about elder abuse, tips for caregivers on how to protect and advocate for their loved ones, real life scenarios, and resources. The goal of the brochure is to help family caregivers of people with dementia to learn how to take care of themselves in order to prevent mistreatment of those for whom care is being provided.

The brochure explains elder mistreatment, offers tips on advocating for and protecting relatives with dementia and provides helpful contacts along with examples. I recommend it.

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Donald D. Vanarelli, Esq. to Present on Mediating Contested Guardianship Cases

Donald D. Vanarelli, Esq. (http://VanarelliLaw.com/) will present at the 2016 CONFERENCE ON GUARDIANSHIP given by the Guardianship Association of New Jersey, Inc. (GANJI) on Tuesday, March 15, 2016 at the Forsgate Country Club in Monroe Township, NJ

Contested guardianships typically involve disputes among adult siblings concerning the safety, living arrangements, autonomy and financial management of a family member who is elderly or has a cognitive impairment. Mediation, which encourages consensus building and fosters the preservation of relationships, is a valuable tool in resolving guardianship contests. Mr. Vanarelli will discuss the mediation process, and the use of mediation to resolve issues that arise in contested guardianship cases.

Who should attend

This program is designed to be of interest to attorneys, social workers, psychologists, professional and family guardians, health care professionals, geriatric care managers, and others who work with individuals caring for persons with disabilities as a result of age, injury or mental illness.

Continuing Education Credits

This course is intended for the intermediate and advanced practitioner. Certificates will be awarded at the conclusion of the Conference, based upon attendance and completion of course evaluation. Please remember to include your State Professional License number when registering.

• Attorneys: This program is pending approval with the Board of Continuing Legal Education of the Supreme Court of New Jersey for 5 hours of total CLE credit.


• Registered Guardians: This program is pending approval by the Center for Guardianship Certification for 5.0 general credits.


• Social Workers: Contact Mary Ellen Colangelo for information at GANJI.Conference@gmail.com

For additional information, contact the Law Office of Donald D. Vanarelli at 908-232-7400, or visit them online at http://VanarelliLaw.com/.

Information about GANJI's upcoming 2016 CONFERENCE ON GUARDIANSHIP can be found below:

SCHEDULE

8:00 - 9:00 AM Registration and Continental Breakfast

9:00 - 9:15 AM Welcoming Remarks: President: Marisol Perez, Esq.

9:15 - 10:15 AM Opening Address: Gwen Orlowski, Esq.

10:15 - 11:15 AM Panel 1: Aging Out of the System

Panel: Gwen Orlowski, Esq.; Edward Leeds, Esq.; and, James C. Maraventano, M.Ed.,BCBA

11:15 - 11:30 AM Break

11:30 - 12:30 PM Panel 2: Divergent POA & Guardianships

Panel: Hon. Margaret Mary McVeigh, P.J.Ch.; Harry O'Malley, Esq. Deputy Surrogate, Mercer County; and, Stephanie M. Kay, Esq.

12:30 - 1:30 PM Lunch

1:30 - 2:30 PM Workshop I (Select One)

A. Technology to Help Seniors Stay at Home

Speaker: Mark Zilberman, LCSW

B. Mediation in Contested Guardianships

Speakers: Connie Rosenberg, MPS,RN,CMC; Donald Vanarelli, Esq.; and, Harry O'Malley, Esq.

C. Medicare/Medicaid Update

Speaker: Mary McGeary, MSW, NJ SHIP

2:30 - 2:45 PM Break

2:45 - 3:45 PM Workshop II (Select One) A. Technology to Help Seniors Stay at Home

Speaker: Mark Zilberman, LCSW

B. Mediation in Contested Guardianships

Speakers: Connie Rosenberg, MPS,RN,CMC; Donald Vanarelli, Esq.; and, Harry O'Malley, Esq.

C. Medicare/Medicaid Update

Speaker: Mary McGeary, MSW, NJ SHIP

3:45 - 4:00 PM CONCLUSION

To register for GANJI's 2016 CONFERENCE ON GUARDIANSHIP, click here: Attendee Registration Form

About GANJI

The Guardianship Association of New Jersey, Inc. (GANJI) is a not-for-profit organization of professionals, families and individuals dedicated to improving the quality of guardianship services and process through education and advocacy. GANJI upholds that:

• Every person appointed to a guardian's care receives quality services, respect, due process, rights and dignity


• Incapacitated persons maintain autonomy and self-determination to the maximum extent possible.

About Donald D. Vanarelli

Recipient of the Marilyn Askin Lifetime Achievement Award from the New Jersey State Bar Association's Elder and Disability Law Section, Donald D. Vanarelli is a Certified Elder Law Attorney, and a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys. Mr. Vanarelli is also an Accredited Veterans Attorney and an Accredited Professional Mediator. He has successfully litigated cases in New Jersey's Supreme Court and in federal court. Mr. Vanarelli represents seniors, the disabled and their families in estate planning, financing long-term medical care, nursing home issues, qualifying for Supplemental Security Income, Medicaid and other public benefits, special needs planning, and litigation, including probate, elder abuse and guardianship lawsuits.

About The Law Office of Donald D. Vanarelli

Located in Westfield, New Jersey, the firm provides a broad range of legal services for seniors, the disabled and their families. The law firm guides clients through complex legal areas including public benefits planning, trial advocacy and court procedures, the administrative process, as well as estate and gift tax laws.

Contact: Ginny Morrissey, The Law Office of Donald D. Vanarelli, Tel: 908-232-7400, Email: gmorrissey@VanarellilLaw.com

For additional information concerning mediation services provided by the Law Office of Donald D. Vanarelli, visit: vanarellilaw.com/resolving-conflicts-through-elder-mediation/

To access numerous articles on the subject of mediation in general and mediation in guardianship contests specifically, go to the Category entitled "Mediation" on the Law Office of Donald D. Vanarelli Blog, here: http://vanarellilaw.com/category/mediation/elder-mediation/

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The Top 10 National Elder Law Decisions of 2015

Below, in chronological order, is the annual roundup of the top 10 national elder law decisions for the year just ended, as measured by the number of "unique page views" of case summaries on the ElderLawAnswers website.

1. 
   

   Florida's High Court Bars Non-Lawyers From Engaging in Medicaid Planning

   
   

Florida's Supreme Court ruled that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law. The court's ruling embraced a proposed advisory opinion of the Florida Bar that resulted from a petition by the Bar's Elder Law Section. The Florida Bar Re: Advisory Opinion -- Medicaid Planning Activities by Nonlawyers (Fla., No. SC14-211, Jan. 15, 2015). To read my blog post about the ruling, click here.

2. 
   

   Beneficiaries Not Named in Trust Have Standing to Sue Attorney

   
   

A Pennsylvania appeals court held that beneficiaries who are not named in a trust still have standing to sue the attorney who prepared the trust as third-party beneficiaries if they can prove they were intended beneficiaries. Agnew v. Ross (Pa. Super. Ct., No. 2195 EDA 2014, Feb. 2, 2015).To read my blog post about the ruling, click here.

3. 
   

   Payments to Caregiver Subject Medicaid Applicant to Penalty Period

   
   

Reversing a lower court, a Michigan appeals court ruled that under state regulations a Medicaid applicant's payments to a non-relative caregiver subjected the applicant to a penalty period because the caregiver did not have a written contract and a doctor had not recommended the service be provided. Jensen v. Department of Human Services (Mich. Ct. App., No. 319098, Feb. 19, 2015). To read a summary of the case, click here.

4. 
   

   State Can Impose Second Penalty Period on Same Transfers of Assets

   
   

A Massachusetts appeals court ruled that the state may impose a second penalty period based on the same transfers of assets after one of the transfers was cured and the applicant reapplied for benefits before the first penalty period was over. Burt v. Director of the Office of Medicaid (Mass. Ct. App., No. 13-P-1853, May 29, 2015). To read a summary of the case, click here.

5. 
   

   Wisconsin Estate Planning Attorney's License Revoked for "Staggering" Misconduct

   
   

A Wisconsin attorney's license to practice law was revoked for numerous counts of professional misconduct, including preparing an estate plan for an assisted living facility resident and his spouse that delayed the resident's eligibility for Medicaid and significantly depleted the couple's assets. Office of Lawyer Regulation v. Laux (Wis., No. 2014AP974, June 24, 2015). To read a summary of the case, click here.

6. 
   

   Ohio High Court Rules That Interspousal Transfer of Home Prior to Medicaid Eligibility Is Improper

   
   

A narrowly divided Ohio Supreme Court ruled that the transfer of a home between spouses prior to Medicaid eligibility is an improper transfer and is subject to the community spouse resource allowance (CSRA) cap. Estate of Atkinson v. Ohio Department of Job and Family Services (Ohio, No. 2013-1773, Aug. 26, 2015). To read a summary of the case, click here.

7. 
   

   Short-Term Annuities Are Not Resources for Medicaid Eligibility Purposes

   
   

The Third Circuit Court of Appeals ruled that Medicaid applicants' short-term annuities are not resources even though the terms were less than the annuitants' life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).To read my blog post about the ruling, click here.

8. 
   

   Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

   
   

A Massachusetts appeals court ruled that an attorney who negligently advised a client that obtaining a life estate in property would hurt her chances of qualifying for Medicaid damaged the client because deprivation of a property right is actual damage. Brissette v. Ryan (Mass. Ct. App., No. 14-P-919, Oct. 29, 2015).To read my blog post about the ruling, click here.

9. 
   

   Son Must Pay for Mother's Care Under Filial Responsibility Law Despite Abusive Childhood

   
   

A Pennsylvania appeals court held that a son is required to pay for his mother's care under the state's filial responsibility law even though the mother did not have outstanding medical bills and the son claimed he had an abusive childhood. Eori v. Eori (Pa. Super. Ct., No. 1342 WDA 2014, Aug. 7, 2015). To read a summary of the case, click here.

10. 
    

    Irrevocable Trust Is Available Asset Because Medicaid Applicant Had Right to Use Trust Asset

    
    

A Massachusetts trial court ruled that a Medicaid applicant's irrevocable trust is an available asset because the applicant still had a right to live in, use, and get income from the condominium owned by the trust. Daley v. Sudders (Mass. Super. Ct., No. 15-CV-0188-D, Dec. 24, 2015). To read a summary of the case, click here.

(This blog post is based upon an article posted on the ElderLawAnswers website. Mr. Vanarelli is a member of ElderLawAnswers, the Web's Most Trusted Long-Term Care and Planning Resource.)

For additional information concerning New Jersey elder law, visit: http://vanarellilaw.com/legal-services/

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Blogging Nightmares: Blogger Found Liable for $600,000 in Defamation Case; Attorney Grievance Filed Against Blogging Lawyer

Two recent cases are vivid reminders that blogging can be dangerous. Bloggers are being found legally accountable and financially liable for their online postings. The take-away is clear: bloggers, beware: what you write can get you sued, or disbarred.

Blogger Found Liable for $600,000 in Defamation Case

A libel lawsuit was filed in Georgia by a former county Board of Commissioners chairman, Richard C. Wolfe, against county resident and local blogger, Ron McClellan, based upon insults and accusations of embezzlement, fraud and corruption made against Wolfe. The accusations were made by McClellan while blogging on a local citizens' Facebook page and in the comments section of a local newspaper website.

To prove libel under Georgia law, Wolfe had to show that McClellan made his comments with "actual malice," meaning that either he knew that the statements were untrue, or that he published them with "reckless regard" for whether the comments were true or not.

After filing the libel lawsuit, Wolfe provided McClellan with more than 1,700 personal records, including bank statements, tax returns and other personal financial documents. However, McClellan did not enter a single document into evidence during trial as proof of his claims. As a result, the trial judge ruled that McClellan had made his comments with "reckless disregard of whether such statements were false or not." This ruling left the jury to determine only the amount of damages to be awarded, and the jury awarded $600,000 to Wolfe.

The case was reported in the LaGrange Daily News, and on the Blog Law Online blog.

Attorney Grievance Filed Against Blogging Lawyer

This case involves a Michigan lawyer, Steven Gursten, who specializes in representing accident victims. On November 13, 2014, attorney Gursten published a blog post in which he identified Dr. Rosalind Griffin, a Michigan psychiatrist who testifies as a medical expert, as one of the "notorious" Michigan doctors who, he said, is known to aid the defense. Gursten asked readers to decide whether Dr. Griffin perjured herself based on several detailed examples from transcripts of her testimony in his cases which he posted online on his blog.

Dr. Griffin filed a grievance against attorney Gursten in 2015. In her grievance, Dr. Griffin claimed that the blog post constituted "conduct [that] involves dishonesty and misrepresentations which reflect adversely on his honest, trustworthiness and fitness as a lawyer," and also that the blog post was "prejudicial to the administration of justice" in that it portrayed the legal system in a bad light. The grievance is now pending.

For those readers involved in blogging, there are several helpful online legal guides. The one I like the best is the Legal Guide for Bloggers by the Electronic Frontier Foundation (EFF) which can be found here: https://www.eff.org/issues/bloggers/legal/liability/overview

The bottom line is this: Although the main legal liability issues for bloggers include defamation, Intellectual Property (Copyright/Trademark) infringement, trade secret infringement, and invasion of privacy, in our litigious society, "there are many 'causes of action' -- reasons for initiating a lawsuit -- which a creative and determined plaintiff can dream up." (EFF) So, be careful out there.

More information about the Gursten case can be found on the Consumer Law and Policy Blog.

The post Blogging Nightmares: Blogger Found Liable for $600,000 in Defamation Case; Attorney Grievance Filed Against Blogging Lawyer appeared first on Elder Law Attorney NJ | The Law Office of Donald D. Vanarelli.

No Trust Reformation Absent Ambiguity in Language of the Trust

In this will contest involving the doctrine of probable intent, Hon. Robert P. Contillo, P.J.Ch. ruled that a court cannot alter the language of a trust that is plain and unambiguous even when extrinsic evidence strongly suggests that the trust language is not what the settlor intended.

Violet and Joseph Nelson had three children: Jacob (known as "Jack"), Jacoba and Robert. Jack had three children, Jacoba had two children, and Robert had one child.

Violet and Joseph practiced Orthodox Judaism, which forbids members of the Jewish faith from marrying non-Jews. In 1970, Jacoba married a man who was not Jewish. The marriage caused a rupture in the relationship between Jacoba and her parents. In that regard, between 1986 and Violet's death in 2006, there was no contact between Jacoba and Violet, or between Jacoba's children and Violet.

Violet's Last Will and Testament, prepared in 1988, as well as a codicil, prepared in 2001, omitted Jacoba and her children as beneficiaries.

Violet also executed a trust, in 2005. The trust distribution provision provided that, upon Joseph's death, the "then principal and all accrued or undistributed net income of the trust shall be distributed in equal shares per capita and not per stirpes to Settlor's grandchildren who survived Settlor ..." Contrary to Violet's will, the trust did not expressly omit Jacoba's children as trust beneficiaries.

Despite the plain, unambiguous language of the trust, there was substantial extrinsic evidence, or evidence outside the trust itself, suggesting that Violet probably meant to omit Jacoba's children as trust beneficiaries. In that regard, the scrivener of the trust testified that the terms of the trust were based upon instructions from Violet's husband and son, not Violet. Further, Violet was not provided a copy of the trust prior to execution. Violet did not read the document before signing it. There was no evidence that the document was read to her. There was also no evidence that either Jack or Joseph, Violet's son and husband, read the document prior to execution. Importantly, the scrivener testified that he told Violet prior to the execution of the trust document that Jacoba's children were omitted as trust beneficiaries, and that Violet understood that fact and fully agreed with that disposition of trust assets.

In 2015, Jack brought a lawsuit as trustee of Violet's trust, seeking a declaration that Jacoba's children were not beneficiaries of the trust. At the conclusion of discovery, Jack filed a motion for summary judgment, while one of Jacoba's children filed a cross-motion seeking confirmation that Jacoba's children were trust beneficiaries.

In its ruling, the court found that the case was governed by N.J.S.A. 3B:3-33-16 which provides, in pertinent part, that

The intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the disposition therein, ... unless the probable intent of such settlor or of such individual, as indicated by the trust or such governing instrument and relevant circumstances, is contrary.

Based upon the above statute, the court ruled that Jacoba's children were trust beneficiaries because a court cannot resort to extraneous circumstances to explain what is plainly stated in the governing instrument, the trust document, absent ambiguity in the language of the trust which, in this trust, did not exist:

The language of the trust is plain and unambiguous: the beneficiaries of the Trust are the "Settlor's grandchildren". This is the core provision of this simple trust. It is not susceptible to alternate readings. It is the sole reference in the Trust to the identity of the beneficiaries of the Trust.

As a result, the court denied the trustee's motion for summary judgment, and granted the motion for summary judgment brought by one of Jacoba's children, finding that Jacoba's children were trust beneficiaries.

The case is annexed here - In the Matter of Violet Nelson

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Appellate Division Affirms Trial Court's Refusal To Set Aside Deeds Executed By Decedent

In 1997, the decedent, Kathleen Boyer, executed a Last Will and Testament and a revocable trust. In the will, she directed that her residuary estate "pour over" into the revocable trust upon her death. She named herself as trustee of the revocable trust and, although she retained complete control of the trust assets during her lifetime, she directed that the corpus of the trust be divided equally among her children upon her death.

In 2008, she executed a revocable deed of trust, deeding her Franklinville real property to her son Richard. The deed also provided that, upon her death, the revocable trust would be dissolved and complete title to the property would vest in Richard.

In 2011, she executed another deed, this time transferring the Franklinville property outright to Richard, but retaining a life estate.

Ms. Boyer died in 2013. Her two sons, who had been named as co-executors of her will, probated the will later that year.

Almost a year later, Ms. Boyer's daughter Kathleen filed an Order to Show Cause seeking to set aside the 2008 and 2011 deeds, and ordering the parties to create a new deed dividing the property equally among Ms. Boyer's children.

The Chancery Division refused to issue the Order to Show Cause, and Kathleen appealed. On appeal, the Appellate Division affirmed the Chancery Division.

The appellate court noted that, unless a will expressly provides otherwise, a will passes all property owned by the decedent at the time of death. Kathleen's primary argument was based upon a 1928 chancery court case, Hamilton Trust Co. v. Bamford, 102 N.J. Eq. 454 (Ch. 1928), aff'd, 105 N.J. Eq. 249 (E. & A. 1929), which held, "If a trust has been once perfectly created, with an intelligent comprehension of the nature of the act, it is irrevocable, even though it be voluntary; and the subsequent acts of the settlor or the trustee cannot affect it." However, the Boyer case was distinguishable from the 1928 Hamilton Trust case in two critical respects: first, unlike the trust in Hamilton Trust, Ms. Boyer's trust was revocable; second, Mrs. Boyer's "subsequent act" was not a subsequent will, as in Hamilton Trust; instead, her "subsequent act" was comprised of two valid deeds that transferred the Franklinville property prior to Ms. Boyer's death.

For these reasons, the Appellate Division concluded that "Kathleen has no legal basis to disrupt decedent's transfer of her real property years before her death to her son Richard."

A copy of In re Estate of Boyer can be found here – In the Matter of the Estate of Kathleen Boyer, Deceased

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