How Can a Dead Man’s Words Be Admitted to Evidence in an Estate Litigation Trial?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Attorney

Here’s the question we’ll try to answer today – when there’s a lawsuit involving someone’s estate, can you get into evidence a verbal or written statement(s) made by the person who has died?  The short answer is yes, you can actually get these statements into evidence if but only if the statement falls under what is known as the “exception to the hearsay rule.”

There are two criteria that a hearsay statement must meet if made by a decedent prior to his/her passing:

  1. The statement must be offered for or against the other party to the case on a claim or demand against the decedent’s estate or its beneficiary (beneficiaries); and
  2. The statement must have be formed on the decedent’s personal knowledge at a time when the subject matter of the state was recently perceived and while his or her recollection was clear about the subject matter

A key point to remember also is that the statement must be trustworthy and credible.

Here’s a hypothetical example that might clear up how and in what scenarios a statement can be proven to be “trustworthy.”

Imagine a plaintiff sues the administrator of the decedent’s estate for a breach of an “alleged” oral contract that the plaintiff had with the decedent.  An oral contract is one that was not executed or memorialized in writing, however it was intended to be a binding and enforceable agreement.  With that being said, the administrator of the estate testifies that he had a conversation with a friend of the decedent and the friend stated that before the decedent died, the decedent said that he had never reached an agreement with the plaintiff. Assume further in this case that the plaintiff’s attorney makes what is known as a “hearsay objection” about the testimony of the administrator. What will be the outcome?

Well, all of the hallmarks of an admissible statement are here: 1) the decedent had personal knowledge of his conversation with the plaintiff. 2) his statement was made shortly after the event had taken place and while his memory was very clear and 3) No circumstances are presented which would indicate or prove that the statement was not trustworthy. Thus it will likely be admissible.

To discuss your NJ Estate Probate Litigation 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.

 

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Is It Too Late to Disclaim an Inheritance if the IRS Has a Lien Against a Beneficiary?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Administration Attorney

Question. Is it too late to file a disclaimer by an estate beneficiary if a Notice of Federal Tax Lien has already been filed against him or her? A tax lien is a claim by the federal government against a taxpayer for alleged money owed to either the IRS or the United States Government. Would the filing of a disclaimer in this instance violate N.J.S.A. 3B:9-9 (a)(6) as a “fraud on the individual’s creditor’s as set forth in the Uniform Fraudulent Transfer Act, R.S. 25:2-20 et seq.

The answer is really straight forward. In Dry v. US, 528 US 49(1999) – The US Supreme Court held that a disclaimer did not defeat the penalty of a federal tax lien. “The Internal Revenue Code’s prescriptions are most sensibly read to look to state law for delineation of the taxpayer’s rights or interest, but to leave to federal law the determination whether those rights or interests constitute ‘property’ or ‘rights to property’ within the meaning code section §6321. ‘[O]nce it has been determined that state law creates sufficient interests in the [taxpayer] to satisfy the requirements of the federal tax lien provision state law is inoperative to prevent the attachment of liens created by federal statues in favor of the United States.

In simple speak it means a disclaimer won’t work to defeat the rights of the US pursuant to a federal tax lien. It also won’t work to defeat the claim of a New Jersey creditor who secures a judgment against the taxpayer debtor.

To discuss your NJ Estate Administration 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.

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If My Revocable Trust Predates My Death, Is It Still Subject to New Jersey Probate?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Trust Attorney

I had a consultation the other day with a client who had already set up a revocable stand alone trust in addition to the will he had created. (A stand alone trust means it was created and funded before death and is not a trust created inside the will as part of the Last Will to take effect upon death).  The trust is considered revocable, meaning the client can terminate it whenever he or she chooses.  Because the trust was created outside of the will, the trust exists before a person dies, with money and property being added to it throughout the life of the person.  Even though the trust is created outside of the will, when the will is probated, will the Surrogate require the trustee(s) of this revocable stand alone to be appointed as testamentary trustees subject to the probate process?

It turns out that because the trust was created outside of the will and not written in the will, the Surrogate’s Office does not need to formally appoint a trustee(s) for that trust after death.  While additional property may be going to the stand alone trust under the terms of the Last Will, because the trust is already in existence and executed, before death the Surrogate does not need to appoint someone to operate this trust.  The only time the Surrogate will need to appoint trustees to a trust is when a decedent’s Will creates the trust. Then this trust is part of the probate process.  It is akin to appointing an executor to manage the administration of the estate.

To discuss your NJ Estate and Probate Trust 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.

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Pennsylvania supremes allow suit alleging inadequate funding for public defender office


Public Defenders


Indigent criminal defendants may sue for alleged inadequate funding in a Pennsylvania public defender’s office, the state supreme court has ruled.

The Pennsylvania Supreme Court ruled (PDF) on Wednesday in the suit against Luzerne County, report the Citizens’ Voice, the Associated Press and the Sixth Amendment Center. The ABA had filed an amicus brief (PDF) in the case urging the court to recognize the prospective claim for denial of counsel.

The criminal defendants who filed the class action had alleged the lack of adequate funding impaired the right to counsel under the Sixth and 14th amendments, as well as the Pennsylvania Constitution. At issue was whether criminal defendants could seek prospective relief and an injunction, without the need to wait for conviction and sentencing.

The Supreme Court said the cause of action is allowed, as long as the class can demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.”

The American Civil Liberties Union of Pennsylvania represented the criminal defendants who sued. The ACLU originally filed the suit on behalf of Luzerne County Public Defender Al Flora, who was subsequently fired.

ACLU of Pennsylvania deputy legal director Mary Catherine Roper told the Morning Call that the decision gives criminal defendants the standing to sue.

“What it means is that in counties all across Pennsylvania there is someone who can sue,” Roper said. “The people who are affected by these underfunded public defender’s offices all across Pennsylvania can go to court to say, `You have set up a system that is violating my rights,’ and that is very important. Without someone who can go into court, you can’t fix it.”



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Former general counsel pleads guilty to robbing bank; he had been out of work


Criminal Justice


A former Pennsylvania lawyer who agreed to disbarment after his arrest in a bank robbery pleaded guilty in the case on Wednesday.

The 58-year-old lawyer, Steven Cormier of Walnutport, was sentenced to 18 to 36 months in prison after he pleaded guilty to robbery, theft and receiving stolen property, the Republican Herald reports. He also pleaded no contest to making terroristic threats.

He was jobless at the time of the robbery in October 2015 and was responsible for the care of his mother. He had previously worked as general counsel at firetruck maker Kovatch Mobile Equipment Corp.

Cormier was accused of stealing nearly $16,000 from a Wells Fargo Bank after warning a teller that “things are going to get ugly” if she didn’t give him the money. Police stopped Cormier in his car after his arrest and brought him to the bank, where three witnesses identified him as the robber.

Cormier’s mother, Cary Sinclair, told a broadcast station that she thought her son was looking for a job at the time of the robbery.



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