By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship and Contract Law Attorney

A colleague represents the guardian of a 70 year old woman in northern NJ. This adult woman (called a “ward” in guardianship vocabulary), died suddenly. The guardian was under contract to sell the ward’s house with the closing scheduled a week away before her death and the buyer was already living in the house pursuant to an occupancy agreement. The real estate contract said nothing about it being binding on successors. The ward had a will which left this house to a person who was found to have stolen from her and this person was now in prison. It was because of this financial exploitation that the guardianship action was filed. The convicted criminal was also named the executor. To my colleague’s knowledge the will was never revoked by ward or in the guardianship action (not even discussed in the guardianship judgement).

The issues raised in the case were/are as follows:

First, is the contract binding on the ward’s estate? And second, can the will be voided at this point and on what basis (or at least the bequest to this man).

Wow, what a case. It reads almost like a law school exam. My first impression is that the contract signed by the guardian is binding upon the estate.

Immediately (like right away) a caveat should be filed preventing the probating of the will and the appointment of the convicted Executor pending further order of the Court. Then an Order to Show Cause (OTSC) and a Verified Complaint in Chancery – Probate Part should be filed to void the Will, appoint an Administrator, and distribute the estate through intestacy. The grounds to void the Will include Unclean Hands (that’s a legal cause of action permitted in a chancery court when someone does someone else “dirty”. The dirty actor cannot profit from their “dirtiness”). The named convicted executor under the will has a conflict of interest since the estate has a cause of action against him individually and therefor as executor he has a conflict of interest representing the estate’s claims against himself for recovery of estate assets and to properly offset his inheritance against amounts due from him to the estate.

So what other causes of action can be alleged to kick someone out of a will who has stolen from the testator? Well, for starters the criminal conviction should be examined for any restitution requirement and if so, that will be one cause for action. As to the real estate, the buyer’s attorney should contact the title company to notify them of the situation. Thereafter the directives from the title company will likely require the guardian to file an emergent motion citing that in the prior guardianship action, the estate most likely will be required to sell to the buyer and the buyer has relied to their determent on the settlement being one week away and is already living on the property.

In the unlikely event the convicted criminal tries to become executor (A convicted criminal cannot qualify as a matter of law as an executor) then you show that he stole the money from the decedent and someone else will certainly be appointed as a special fiduciary to bring a claim against him to recovery the amount he stole. When he doesn’t get appointed as executor, then whoever becomes executor or administrator can bring the claim.

To discuss your NJ Estate Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.