Will is Presumed Valid

Will is Presumed Valid NJSA 3B:3-1 Individuals competent to make a Will and appoint a testamentary guardian.

3B:3-1 states “ Any individual 18 or more years of age who is of sound mind may make a Will and may appoint a testamentary guardian. L. 1981, c. 405 amended 2004, c. 132, s. 8.

3B:3-2 Execution; witnessed wills; writings intended as wills. 3B:32. States: Execution; witnessed wills; writings intended as wills. a. Except as provided in subsection b. and in N. J. S. 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.

The Supreme Court in Gellert v. Livingston, 5 N. J. 65, 71 (1950) held: "The legal presumption is that the testator was of sound mind and competent when he executed the will. In re Craft's Estate, 85 N. J. Eq. 125, 130 (Prerog. 1915); In re Babcock, 106 N. J. Eq. 228 (Prerog.

1930); In re Raynolds, 132 N. J. Eq. 141, 147 (Prerog. 1942). The burden of proving undue influence is upon the person asserting it and it must be clearly established. In re Raynolds, supra, p. 147; In re Heim, 136 N. J. Eq. 138 (E. & A. 1944); In re Nixon, Ibid. 136 N. J. Eq. 242 (E. & A. 1944); In re Bottier, 106 N. J. Eq. 226 (Prerog. 1930); In re Strang, 109 N. J. Eq. 523, 527 (E. & A. 1931).

The mere existence of a confidential relationship between the testator and the beneficiary does not alone create a presumption of undue influence. In re Neuman, 133 N. J. Eq. 532, 535 (E. & A. 1943).

This is especially true in husband-wife relationships. 2 Page on Wills, § 822, p. 627; § 818, p. 619.

There must be, in the case of wills, some additional facts or circumstances in support of the allegation of undue influence in order to cast the burden of proof upon the beneficiary; In re Nixon, supra, p.

244; In re Heim, supra; In re Neuman, supra. " Gellert v. Livingston at Page 72 A "parent need not make testamentary provisions for a child. " Raynor v.

Raynor, 319 N. J. Super. 591, 612 (App. Div. 1999). Thus, "[i]t is well-settled that New Jersey law does not prohibit the disinheriting of an adult child. " In re Unanue, 311 N. J. Super. 589, 596 (App. Div. ), certif. denied, 157 N. J. 541 (1998), cert. denied, 526 U. S. 1051, 119 S. Ct. 1357, 143 L. Ed. 2d 518 (1999).

"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. '" Haynes v. First Nat'l State Bank, 87 N. J. 163, 175-76 (1981) (quoting Gellert v.

Livingston, 5 N. J. 65, 71 (1950)) IN THE MATTER OF THE PROBATE OF THE A LLEGED WILL OF ELLIOTT

LANDSMAN,

319

N. J.

Super.

252.

(1999)

the

court

held:

“Testamentary capacity exists where the testator can comprehend the property he is about to dispose of, the natural objects of his bounty, the meaning of the business he is engaged, the relation of each of those factors to the others, and the distribution that is made by the will. Gellert v. Livingston, 5 N. J. 65, 73 (1950).

Old age and failure of memory do not of themselves take away a testator's capacity. Id. at 77. Nor does blindness destroy it. In re Skewis' Will, 2 N. J. Super.

114, 119 (App. Div. 1949). ” In ESTATE OF CALVERT OSTLUND, SR 391 N. J. Super. 390 the Court held: While it is true that in Pascale and Fulper, our courts have found parentchild relationships to be "among the most natural of confidential relationships," it has also been held that "the mere existence of family ties does not create . . . a confidential relationship. " See Vezzetti v. Shields, 22 N. J. Super. 397, 405 (App. Div. 1952); see also Pascale, supra, 113 N. J. at 34; Fulper, supra, 99 N. J. Eq. at

314. In Blake v. Brennan, the court found the test for measuring the existence of a confidential relationship is "whether the relations between the parties are of such a character of trust and confidence as to render it reasonably certain that the one party occupied a dominant position over the other and that consequently they did not deal on terms and conditions of equality. " 1 N. J. Super. 446, 454 (Ch. Div. 1948).

The factors to be considered in determining whether a confidential relationship is present, therefore, include whether trust and confidence between the parties actually exist, whether they are dealing on terms of equality, whether one side has superior knowledge of the details and effect of a proposed transaction based on a fiduciary relationship, whether one side has exerted overmastering influence over the other or whether one side is weak or dependent.

As one court has said, "there are innumerable cases involving confidential relationships, but the courts have not been able precisely to define what it is. " Stroming v. Stroming, 12 N. J. Super. 217, 224 (App. Div. ), certif. denied, 8 N. J. 319 (1951). Its essentials are both "a reposed confidence and the dominant and controlling position of the beneficiary of the transaction. " Ibid. "[T]he dominance must be of the mind and the dependence must be upon the mind," rather than the physical. Ibid. "It exists when the circumstances make it certain that the parties do not deal on equal terms. " Ibid. It does not exist "where the parties deal on terms of equality," even though they are, at the same time, family members and business associates. Ibid. The test, then, is a fact-sensitive one, but focuses on the equality of the parties with respect to each another.

In the Ostlund case, the court held Plaintiff, at the outset, has the burden of proving, by a preponderance of the evidence, that a confidential relationship exists. Petruccio, supra, 205 N. J. Super. at 581. The trial court here, as the fact finder, found no confidential relationship between decedent and Junior, "[t]he proofs are lacking that there is any confidential relationship between Calvert Ostlund, Sr. and Calvert Ostlund, Jr. [at] the time the account was opened. " The trial judge in Ostlund further found no evidence of dependence or subservience and that all that was proved was the mere existence of a family

relationship between decedent and Junior. In essence, the judge found a failure of proofs necessary to show inequality between the parties that would rise to the level of a confidential relationship.

The preponderance of the evidence standard requires plaintiff in this case to establish that the desired inference, that is, the existence of a confidential relationship, is more probable than not. See Biunno, Current N. J. Rules of Evidence, Comment 5 on N. J. R. E. 101(b)(1) (2007).

The Court in Ostlund held The record in this case demonstrates that there is competent, relevant, and reasonably credible evidence that decedent was living independently in his New York apartment, going to work, and of sound mind during the creation of this account. There is evidence that he consulted with attorneys of his choosing and remained a stubborn man, although he did have certain health problems. Accordingly, the trial judge's findings are grounded in competent, relevant, and reasonably credible evidence and his conclusion that there did not exist a confidential relationship should not be disturbed. ESTATE OF CALVERT OSTLUND, Supra which addressed disposition of a joint bank account on the death of one of the parties to the account.

A Gift is Presumed Valid Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N. J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N. J. 20, 29 (1988). When a party alleges undue influence with regard to an inter vivos gift, the contesting party must prove undue influence existed or that a presumption of undue influence should arise. Pascale, supra, 113 N. J. at 30.

A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id. ; see also Seylaz v. Bennett, 5 N. J. 168, 172 (1950); In re Dodge, 50 N. J. 192, 227 (1967); Mott v. Mott, 49 N. J. Eq. 192, 198 (Ch. 1891); See also In re Neuman’s Estate, 133 N. J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context “Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos. ”) More recently the NJ Supreme Court in Pascale v Pascale 113 N. J. 20 (1988) held :

"Undue influence" has been defined as that sort of influence that prevents the person over whom it is exerted "from following the dictates of his own mind and will and accepting instead the domination and influence of another. " Haynes, supra, 87 N. J. at 176 (quoting In re Neuman, 133 N. J. Eq. 532, 534 (E. & A. 1943)); accord Loveridge v.

Brown, 98 N. J. Eq. 381, 389 (E. & A. 1925); see also In re Hale's Will, 21 N. J. 284, 288 (1956) (to constitute undue influence, there must be a disruption of "the freedom of will and judgment of the testator. ")

With respect to a Will, to create a presumption of undue influence the contestant, by comparison, must show the existence not only of a confidential relationship, but also "suspicious circumstances," however "slight. " Haynes, supra, 87 N. J. at 176. Without proof of suspicious circumstances, a confidential relationship will not give rise to the presumption in the testamentary [*31] context. 5 N. J. Practice, Clapp, Wills & Administration § 62, at 224-28 (3d ed. 1982).

The NJ Supreme Court set forth In the Matter of Stockdale 196 NJ 275 (2008) :” In a Probate Part proceeding in which a caveator or challenger seeks to set aside a will based on an assertion that it was the product of undue influence, the burdens of proof and the issues to be considered have been firmly established in our case law. As this Court has explained, undue influence is a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer in lieu thereof.

Haynes v. First Nat'l State Bank, 87 N. J. 163, 176 (1981). It denotes conduct that causes the testator to accept the "domination and influence of another" rather than follow his or her own wishes. Ibid. (quoting In re Neuman, 133 N. J. Eq. 532, 534 (E. & A. 1943)).