Fiduciary Litigation

Trust, Estate and Fiduciary Litigation
A fiduciary is an individual who is in charge of or acting as an Executor of a decedent’s estate. When a person dies, they may leave money in trust to an heir. A person serving as trustee may lack the necessary experience in handling complex trust or estate administration matters. This often leads to litigation being filed against them when beneficiaries are unhappy with how the estate or trust is being administered. Estate and fiduciary litigation attorneys represent beneficiaries in prosecuting actions against trustees and executors. We also defend trustees and executors who find themselves the target of fiduciary litigation claims.

What Are the Duties of the Trustee?
The trustee is a fiduciary who owes a special duty of loyalty to the beneficiaries. The trustee should act in the best interests of the beneficiaries. It is the duty of the trustee to protect, preserve and invest the assets in a way that will benefit the trust beneficiaries. The trustee is also tasked with the following:

• Keep complete and accurate records
• The trust must be managed with reasonable care and skill
• Invest the trust assets in a prudent manner
• To not mix trust assets with any other type of assets

A trustee who lacks specialized knowledge can hire professionals, such as attorneys or accountants to act as a guide when necessary.

Will Contests and Will Challenges
Contesting a will may be done by a family member or beneficiary who feels slighted by the terms of the division of property or assets. Every state has specific laws governing how a Last Will and Testament can be contested. The basic grounds for contesting a will include the four following arguments:

1. The Will Was Not Signed in Accordance With State Law
The Commonwealth of Pennsylvania and State of New Jersey requires the will to be signed by the Testator (the person signing the will).

2. Testamentary Capacity
The Testator lacked testamentary capacity to sign the will. For a will to be valid, the person making the will must understand that he or she is giving away his or her assets. In addition, they must understand:

• The nature and value of his or her assets
• Who should logically inherit his or her assets
• The legal effect of signing the will.

Testamentary capacity is judged by the legal standard known as preponderance of evidence. This means that the evidence presented by each side is weighed according to relevance and reliability and not by the amount of evidence presented.

3. Undue Influence
To prove undue influence, the person contesting the will must prove that the mind of the Testator was controlled by pressure and persuasion and that he or she did not act voluntarily. The following elements must be shown to prove undue influence:

• The beneficiary had a confidential relationship with the Testator
• The beneficiary stood to inherit money or assets
• The beneficiary was an active participant in procuring the will

4. The Will Was Procured Through Fraud
If the Testator was tricked into signing the will, this is considered fraud. Fraud occurs when the Testator is told that the document they are signing is something other than a will. The Testator was intentionally misled by someone who stood to benefit from the will.

Contesting a Will in Pennsylvania
The Orphans’ Court Division for the Court of Common Pleas in the county which the decedent resided has jurisdiction over will contests in the Commonwealth of Pennsylvania. The will must have already passed through the Register of Wills in the county where the decedent resided. Once the will has passed through the Register of Wills, the Court assumes that the will is valid. If you want to contest the will at this point, the burden or proof becomes more difficult.

Contesting a Pennsylvania Will Prior to Probate
Before the will passes through the Register of Wills, you can file a caveat preventing the Register’s office from issuing a decree of probate. This prevents them from sending the will to the Orphan’s Court until objections have been heard in a formal proceeding. If you lose the case, you must appeal the Register’s decree of probate in Orphan’s Court.

Appealing the Register of Wills Ruling
To challenge the Register of Wills decree of probate, you must file the challenge within one year from the date of their ruling. However, the executor and any beneficiaries have the right to file an Order to Show Cause, and request that the court shorten the statute of limitations to 90 days in order to avoid delays in the probate process.

Court Costs & Penalties
When you appeal probate after the will has reached Orphan’s Court, you may be required to post bond or put up an insurance policy against losing the case. This bond will cover the court costs of filing the objection, which you are responsible for if you lose the case. It also covers the cost of any penalties the court might impose for challenging the will and failing.

Contesting a Will in New Jersey
Generally, there are two ways to challenge a will in the State of New Jersey:

1. Requisite Mental Capacity
The person contesting the will alleges that the Testator was not of “sound mind” when the will was executed. The Surrogate Court may choose to review medical records about the decedent’s mental and physical health to determine if the person had the requisite mental capacity at the time the will was executed.

2. Undue Influence
The will reflects the wishes of another person rather than the intentions of the decedent because another individual asserted undue influence over the Testator. To prove this claim, you must show that the Testator had a confidential relationship with another person who influenced the language of the will.

Contesting a Will Prior to Probate in New Jersey
You can file a caveat with the Surrogate’s Court in the county where the decedent resided or in the county where he or she owned property. You have until the Surrogate’s Court receives and records the will and application for probate.

Contesting a Will After Probate in New Jersey
After the will is admitted to probate in the Surrogate’s Court, you can no longer appeal to have it set aside. You must then file a complaint with the Superior Court in New Jersey. You have four months to file the complaint if you reside in New Jersey, and six months if you live elsewhere.

Reopening Probate
You may be able to contest the will after probate if extraordinary circumstances exist. An example would be discovering a new will that is more current than the will that was probated. You have one year to file a motion to reopen probate. However, the statue of limitations may not apply if something occurred to render the probated will invalid.


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