
James F. McDonough
Of Counsel
732-568-8360 jmcdonough@sh-law.comFirm Insights
Author: James F. McDonough
Date: October 1, 2013

Of Counsel
732-568-8360 jmcdonough@sh-law.com
Will contests alleging undue influence are not uncommon. A will was, for many years, the only means of transmitting property from a decedent to an heir. New forms of ownership were created as the result of the public’s disdain for will contests and delays in transferring property through probate. The result was new forms of ownership that were designed to provide the survivor with immediate access to the bank or brokerage account. Transfer on Death (TOD), Payable on Death (POD) and joint tenancy with the right of survivorship (JTROS) accounts pass the property by operation of law outside of the probate estate. Life insurance and retirement benefits are similar in that property pass in accordance with the beneficiary designation contained in a form that may be filed by mail or on-line.
A person exerting undue influence will find it easier to be named as a beneficiary of a POD, TOD or JTWROS account rather than by will. When a charge of undue influence is leveled, the courts use a similar analysis to that in a will contest. Typically, when the moving party is able to demonstrate that certain factors are present, a presumption in favor of undue influence arises which must then be rebutted. Undue influence is presumed when a person having a confidential relationship actively secures or procures the instrument of transfer and is a beneficiary of such a transfer. The person is able to prevail upon the donor because of the donor’s ill health, frailty, lack of capacity.
A recent Florida case, Estate of Kester, examined the traditional factors, however, it is difficult for a reader to determine how much weight the court assigned to each factor in arriving at its conclusion. Despite being named agent under a power of attorney, the defendant was not the only child with a close relationship to the decedent. In addition, the decedent changed the beneficiary designations independently of the defendant.
In a New Jersey case, In re Estate of Bagno, the Appellate Division examined the use of joint accounts. Under N.J.S.A. 17:16I-5(a), the surviving joint account holder is entitled to the account unless there is clear and convincing evidence of a different intention at the time the account is created. A party may prove by the preponderance of the evidence that the surviving account holder had a confidential relationship with the donor. Once there is a presumption of undue influence, the burden of persuasion shifts to the survivor.
The Appellate Division evaluated the relationship between donor and donee, the donor’s physical and mental health, the donor’s reliance on the donee for care, whether the donee is a substantial beneficiary, whether account was created openly or in secret, whether the account is at variance with donor’s One factor that is especially important is whether the donee assisted in establishing the account or was the account created with the help of others.
It is particularly troublesome to see an estate plan upset by a subsequent change resulting from a POD account or a beneficiary designation. Typically, the change drains the estate of liquidity or shifts the tax burden disproportionately to property passing by the will.
One constant and recurring theme in estate planning is the abuse of trust placed in agents under a Power of Attorney or in persons having a confidential relationship with a transferor. An analysis of the facts and circumstances surrounding an account designation is similar to that of a will and is just as costly.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Author: Michael Mietlicki

Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Author: Graham Staton

Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Author: Michael Mietlicki

For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Author: Sean M. Pena

Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Author: Donald M. Pepe

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
Author: Chris Seelinger
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!