DISCLAIMERS
A disclaimer is an irrevocable and unqualified refusal to accept an interest in property. It has two sources: IRC §2518 & N.J.S. 3B:9-1 et. seq., both of which must be complied with, along with a substantial body of regulations and case law. A valid disclaimer has four elements: 1. It must be in writing 2. It must be received by
PROBATE LITIGATION (Part III)
Grounds for Challenging Wills Fraud & mistake Elective share Cases of fraud and mistake occur where the testator mis-identifies the instrument, such as where he or she signs an earlier draft of a will, or erroneously assumes the existence of a material fact, such as the death of a child, whether or not the error is caused by the agency
PROBATE LITIGATION (Part II)
Grounds for Challenging Wills Lack of capacity Faulty execution Lack of testamentary capacity can be proven by a showing that, at the time he or she executed the will, the testator failed to understand: (1) the nature and extent of his assets and property; (2) the natural objects of his bounty; and (3) the connection between (1) and (2). Gellert
PROBATE LITIGATION (Part I)
Grounds for Challenging Wills Undue influence Broadly speaking, undue influence is “mental, moral or physical exertion which has destroyed the free agency of the testator by preventing him or her from following the dictates of his own mind and will and by accepting instead the domination and influence of another.” Haynes v. First National State Bank, 87 N.J. 163, 176 (1981).
MEDICAID ESTATE RECOVERY AND THE DEMARTINO CASE
N.J.A.C. 10:71-4.10(b)(3) provides that income and resources of a Medicaid applicant that he or she is “entitled to but does not receive because of action or inaction by the individual,” including waiver of the right to receive an elective share, are deemed to be asset transfers that can result in the imposition of substantial penalties that can delay qualification for
NEW JERSEY’S ELECTIVE SHARE STATUTE
The surviving spouse or domestic partner of a New Jersey decedent has a right of election to take a one-third share of the predeceased spouse’s or partner’s “augmented estate,” unless the parties were living separate and apart or ceased to cohabit as man and wife at the time of death. The augmented estate is defined as the estate, reduced by