Undue Influence as Defense to Will or Power of Attorney

One of the major cases dealing wi th undue influence was Haynes v.

First National State Bank of New Jersey, ! N.J. "#$, !%& !# '"("). Here the
Su*reme +ourt held that the ,urden of *roof esta,lishi ng undue influence
shifts to the *ro*onent when a will ,enefi ts a *erson who stood in a
confidenti al relationshi * to the decedent and there are sus*icious
circumstances which need e-*lanati on. .he sus*icious circumstances need
onl y ,e slight. /d. at "!#. 0oreover, when the evidence is almost enti rel y in
the *ossession of one *arty and the evidence *oints to the *ro*onent as
asserti ng undue influence, a clear and convinci ng standard may ,e a**lied
rather than the normal ,urden of *roof of *re*onderance of the evidence. /d.
at "$.
Furthermore, the Haynes analysis was e-tended to situati ons in which
there is a transfer of *ro*ert y where the ,eneficiary of the *ro*ert y and an
attorney is on one side and the donor on the other. See Oachs v. Stanton ,
12 N.J. Su*er. 3!, 3$ '4**. 5iv. "((%).
.he court in Oachs determi ned that under circumstances such as these
the donee ,ears the ,urden of *roof to esta,lish the validi ty of the gift, even
in situati ons in which the donee did not domi nate the decedent6 s will. /d. at
3%. .his rule was esta,lished to *rotect a donor from maki ng a decision
induced ,y a confidenti al relationshi * the donee *ossesses wi th the donor.
/d. 4gain, the ,urden is a clear and convinci ng standard. /d.
.he Su*reme +ourt in 7ascale v. 7ascale, ""$ N.J. 12, $" '"((), stated
that when a donor makes a gift to a donee that he8she is de*endent u*on, a
*resum*ti on arises that the donor did not understand the conse9uences of
his8her act. /n these situati ons the donee must demonstrate that the donor
had disinterested and com*etent counsel. /d. :ikewise, undue influence is
conclusive, when a mentall y or *hysicall y weakened donor makes a gift
wi thout advice or a means of su**ort, to a donee u*on whom he8she
de*ends. /d.
"
4 confidenti al relati onshi * can ,e found to e-ist when one is certai n
that the *arties deal t on une9ual terms. /n re Stromi ng6 s ;ill , "1 N.J. Su*er.
1"!, 113 '"(%"). .he a**ro*riate in9ui ry is if a confidenti al relationshi *
e-isted, did the *arti es deal on terms and condi tions of e9uali ty< Blake v.
Brennan , " N.J. Su*er. 33#, 3%$ '"(3).
Sus*icious circumstances are not re9uired to create a *resum*ti on of
undue influence wi th regard to inter vivos gifts and the *resum*ti on of
undue influence is more easil y raised in an inter vivos transfer. See 7ascale,
su*ra , ""$ N.J. at $"= Bronson v. Bronson , 1" N.J. Su*er. $(, $(3 '4**. 5iv.
"(!).
>enerall y, an adul t is *resumed to ,e com*etent to make an inter
vivos gift. See +onners v. 0ur*hy , "22 N.J. ?9. 12, 11 '?. @ 4. "(1#)=
7ascale v. 7ascale, ""$ N.J. 12, 1( '"(). However, when a *arty alleges
undue influence wi th regard to an inter vivos gift, the contesti ng *arty must
*rove undue influence e-isted or that a *resum*ti on of undue influence
should arise. 7ascale, su*ra , ""$ N.J. at $2.
4 *resum*ti on of undue influence arises when a confidenti al
relationshi * e-ists ,etween the donor and donee or where the contestant
*roves the donee domi nated the ;ill of the donor. /d. = see also SeylaA v.
Bennett , % N.J. "#, "!1 '"(%2)= /n re 5odge, %2 N.J. "(1, 11! '"(#!)= 0ott v.
0ott , 3( N.J. ?9. "(1, "( '+h. "(")= Oachs v. Stanton , 12 N.J. Su*er. 3!
'4**. 5iv. "((%) 'holding that where a confidenti al relati onshi * e-isted and
that the donor did not rely u*on the donee, a shifti ng of the ,urden was still
a**ro*riate)= /n re Neuman6s ?state , "$$ N.J. ?9. %$1, %$3& $% '?. @ 4. "(3$)
'stati ng in a will conte-t BSuch ,urden does not shift merel y ,ecause of the
e-istence of a confidenti al relati onshi *, without more, as in the matter of
gifts inter vivos.C)
.he /n re 5odge court e-*lained why a *resum*ti on of undue influence
arises in a confidenti al relationshi * and statedD B/n the a**licati on of this rule
it is not necessary that the donee occu*y such a domi nant *osition toward
the donor as to create an inference that the donor was una,le to assert his
will in o**osi ti on to that of the donee.C /n Ee 5odge , %2 N.J. "(1 '"(#!). .he
court referenced a much earlier case in e-*laini ng the rule6s a**licati onD
F/ts *ur*ose is not so much to afford *rotecti on to the donor against
the conse9uences of undue influence e-ercised over him ,y the donee, as it
1
is to afford him *rotecti on against the conse9uences voluntary action on his
*art induced ,y the e-istence of the relationshi * ,etween them, the effect of
which u*on his own interests he may onl y *artiall y understand or
a**reciate.F /n re 5odge , su*ra , %2 N.J. at 11 citing Slack v. Eees, ## N.J.
?9. 33!, 33( '?. @ 4. "(23).
/n sum, once it is *roven that a confidenti al relati onshi * e-ists the
,urden shifts to the donee to show ,y clear and convi ncing evidence that no
undue influence was used. 4lthough the case law indicates sus*icious
circumstances need not ,e shown the donee must show all was fair, o*en
and voluntary, no dece*ti on was *racticed and that the transacti on was well
understood. 7ascale, su*ra , ""$ N.J. at $"= see also /n re 5odge , su*ra , %2
N.J. at 11!= SeylaA, su*ra , % N.J. at "!$. Furthermore, confidenti al
relationshi *s arise in all ty*es of relationshi *s Bwhether legal, natural or
conventi onal in thei r origin, in which confidence is natural l y ins*ired, or, in
fact, reasona,l y e-ists.C /n re Ful*er6s ?state , (( N.J. ?9. 1(1, $"3 '7rerog.
+t. "(1#)= see 7ascale, su*ra , ""$ N.J. at $3. /t a**ears confidenti al
relationshi *s e-ist in all cases in whichD
F.he relati ons ,etween the Gcontracti ngH *arties a**ear to ,e of such a
character as to render it certai n that they do not deal on terms of e9uali ty,
,ut that either on the one side from su*erior knowledge of the matter
derived from a fiduciary relati on, or from over& masteri ng influence= or on the
other from weakness, de*endence or trust justifia,l y re*osed, unfair
advantage is rendered *ro,a,le.F 7ascale, su*ra , ""$ N.J. at $3, 9uoti ng /n re
Ful*er , su*ra, (( N.J. ?9. at $"3= see also /n re 5odge , su*ra , %2 N.J. at 11.
/n determi ni ng whether the 5efendant was the dominant *erson in the
relationshi * there is no clear cut rule and instead the court must look to the
*articular circumstances of the matter. /n re Ful*er , su*ra , (( N.J. ?9. at $"%=
>iaco,,i v. 4nselmi , " N.J. Su*er. #22, #"# '+h. 5iv. "(%1). /n Ful*er the
court determi ned that a confidenti al relationshi * e-isted in a father& son
relationshi * in which the father was advanced in age, weak and *hysicall y
de*ended u*on the son. 0oreover, since the father sought the son6s
assistance on ,usiness matters, lived wi th the son during the winter months
and gave the son joint and several *ower over his checking account an
actual re*ose of trust and confidence in the son was demonstrated. /n re
Ful*er , su*ra , (( N.J. ?9. at $".
$
/n the >iaco,,i case, su*ra , a confidenti al relati onshi * was determi ned
to e-ist ,etween a mother and daughter, even though the mother did not
suffer from mental or *hysical infirmi t y. .here the mother was found to ,e
alert, acti ve, and somewhat inde*endent. However, she turned to the
daughter for small issues and *ro,lems when they occurred. >iaco,,i , su*ra ,
" N.J. Su*er. at #"!.
.herefore, the ,urden can shift to 5efendant to *rove ,y clear and
convinci ng evidence the transacti on was not undul y influenced. Furthermore,
where a donor makes an Bi m*rovi dent C gift to the donee u*on whom she
de*ends that stri*s the donor of all or virtuall y all thei r assets, as here, a
*resum*ti on arises that the donor did not understand the conse9uences of
thei r act. 7ascale, su*ra , ""$ N.J. at $", citing Iander,ach v. Iollinger , " N.J.
3", 3( '"(3(). Jnder those circumstances the donee must esta,lish that
the donor had the advice of com*etent and disinterested counsel. /d. citing
Iander,ack, su*ra , " N.J .at 3& (.
Similarl y, when a mentall y or *hysicall y weakened donor makes a gift
to a donee whom the donor is de*endent u*on, without advice, and the gift
leaves the donee without ade9uate means of su**ort, a conclusi ve
*resum*ti on of undue influence arises. /d. citing SeylaA, su*ra , % N.J. at "!$.
However, when a donor is not de*endent u*on the donee Binde*endent
advice is not a *rere9uisi te to the validi t y of an im*rovi dent gift even though
the relati onshi * ,etween the *arties is one of trust and confidence. C /d. citing
SeylaA, su*ra , % N.J. at "!$.

4lthough sus*icious circumstances are not re9ui red to ,e esta,lished
in an inter vivos transfer for a *resum*ti on of undue influence to e-ist,
there,y shifti ng the ,urden of *roof, 7lainti ff has raised the issue. 7ascale,
su*ra , ""$ N.J. at $2.
If Undue Influenc e was
'Clear, ' the Will of the
3
Elderl y Test at ri x is
Deni ed Admi s s i on to
Probat e
The test at rix' s Will was properly reject ed as the product of undue
influence becaus e the proponent and the test at rix had a
confidenti al relationshi p and becaus e ther e were "suspicious
circumst anc e s" surroundi ng the executi on of the will.
/n Ee 7ro,ate of the :ast ;ill and .estament of +atelli $#" NJ Su*er. 3!
'4**. 5iv. 122$)
In the Cat elli case, Thomas . !illone was named by his
elderly aunt , "nna !illone Cat elli, as the execut or in a will and as
the trust ee under a li#ing trust which she execut ed on $anuary %,
&%%'. (e appeal s from the decision of the Chancery )i#ision which
refused to admi t that &%%' will to probat e, which named his cousin,
*eorge !illone, as the "dminist r at or C.T.". of Cat elli' s est at e, which
order ed him to rest or e asset s to the est at e, which awar ded counsel
fees and which dismi ssed a relat ed compl ai nt that he had filed in
his effort to enforce cert ai n pro#isions of the &%%' trust .
The decision of the trial court was made following two days of
testi mony and the consider at i on by the court of deposi tion
testi mony gi#en by witness es, including Thomas !illone, who could
not appear in +ew $ersey. In that decision, the court first held that ,
as a mat t er of public policy, the will could not be admi t t ed to
probat e becaus e at the time of the executi on of the &%%' will, "nna
Cat elli had become blind and the only person who could #erify that
the cont ent s of the document s had been read to her so that she
,new what she was signing was Thomas, who the disput ed
document s made her sole heir. "s an alt ernat e ground, the judge
analy-ed the testi mony and the e#idence in the nat ur e of an
application for a direct ed #erdict at the close of the plaintiff' s case
and det er mi ned that Thomas !illone could not pre#ail on the
merit s. .ecaus e we affirm the decision of the court based upon the
alt er nat e ground, we do not addr ess the court ' s public policy
rational e.
%
!iewed in the light most fa#or abl e to Thomas !illone, the
record discloses the following fact s. The test at or, "nna Cat elli, was
a widow who had no children and who li#ed alone. /he had a
number of nieces and nephews, including Thomas !illone and
*eorge !illone. /he also had a brot her, obert , who died in 0lorida
in &%%1. obert had named Thomas, his nephew, as the execut or
and principal benefici ary of his est at e. Thomas, who was a self2
empl oyed long dist ance truc, dri#er li#ing in "ri-ona, had not had
much cont act with "nna Cat elli, but tel ephoned to tell her of her
brot her ' s deat h. In that con#er sat i on, Cat elli had as,ed him to
come and #isit her when he was next in +ew $ersey and he
ther eaf t er did so.
3arly in &%%1, while Thomas was #isiting her at her home,
then in /pringfield, Cat elli as,ed him to dri#e her to her lawyer' s
office in 4aplewood which he did. (e learned that day that Cat elli
had named him as her alt er nat e power of att or ney in the e#ent
that her long2 time physici an and confidant e, )r. Coppol a, was
unabl e to ser#e. While he was not awar e of it at the time, she had
gone to the lawyer' s office that day to execut e a will that left her
est at e to a #ariet y of relati#es and friends and to two churches and
which included him as one of the residuar y benefici ari es. 5ater that
year, Cat elli suffer ed a significant stro,e which left her parti ally
par aly-ed and with limit ed power s of speech and sight. /he was
mo#ed by )r. Coppol a to a nursi ng home, and ther eaft er to the
*arden Terrace +ursing (ome wher e she remai ned until her deat h.
Thomas #isit ed her at the nursing home from time to time when he
was in +ew $ersey. /hortly befor e Than,sgi#ing &%%6, )r. Coppol a
telephoned Thomas and told him that Cat elli want ed to ma,e him
her sole heir. )r. Coppol a died two or three days lat er.
0ollowing )r. Coppol a' s deat h, Thomas in#o,ed the power
of at t orney to ma,e 7&8, 888 gifts to himself, his wife and his
daught er . (e next recei#ed from )r. Coppol a' s son all of the paper s
relati ng to Cat elli' s asset s. While Thomas then ,new that the
desi gnat i on of him as the sole heir was a depar t ur e from her earlier
will, he did not discuss this appar ent change of plans with Cat elli.
ather, he immedi at el y consult ed an at t or ney in "ri-ona who
prepar ed a li#ing trust , which named Thomas as the trust ee, and a
pour2 o#er will which named Thomas as the execut or and sole heir.
The "ri-ona at t or ney ga#e the docume nt s to Thomas along with a
#
lett er which instruct ed him to ha#e the document s re#iewed by a
+ew $ersey att or ney and which suggest ed that "nna be
repr es ent e d by independe nt counsel. Thomas then came to +ew
$ersey, arri#ing on $anuary ', &%%'. While Thomas ,new that Cat elli
had been repr es ent e d in the past by the lawyer in 4aplewood, he
did not cont act him and did not consul t with any other +ew $ersey
lawyer. Inst ead, he went directly to the nursing home and #isit ed
with Cat elli.
9#er the course of the next three days, while she
remai ned in her bed and do-ed on and off, he read the document s
to her. Thomas has a high school educat i on and concedes that he
would not ha#e been abl e to expl ai n or interpr et any of the
language of the trust or the will to Cat elli. (e was awar e that the
trust and the will toget her would enabl e him to a#oid probat e, but
he did not under st and why that might be ad#ant ageous. "t no time
did he sugges t that Cat elli consul t with an att or ney or offer to
cont act her +ew $ersey lawyer for her.
"fter three days, Thomas made arrange me nt s with the
admi ni st r at or of the nursing home to execut e the trust and the will.
The admi ni st r at or ser#ed as a not ary and two nurses obser#ed
Cat elli place an ":" on the line Thomas indicat ed. /hortly aft er the
executi on, Thomas ga#e up his truc, dri#ing job, empl oyed himself
as the full2time manager of Cat elli' s asset s and under t oo, to gain
control of Cat elli' s inter est in 3xcelsior ealty 5td. ;3xcelsior<, a
family real est at e #ent ur e, through the trust instrume nt . =rior to
Cat elli' s deat h, Thomas' effort s to gain control of her inter est in
3xcelsior consist ed of corresponde nc e with his cousi n *eorge
!illone who was the *ener al =art ner of that #ent ur e. *eorge !illone
refused to ac,nowl edge the #alidity of the $anuary %, &%%' trust
agr ee me nt and refused to turn cont rol of Cat elli' s inter est in
3xcelsior o#er to Thomas. (e continued to refuse aft er Cat elli' s
deat h on $uly 6, &%%>. "s a result, in 4arch &%%%, Thomas instit ut ed
litigation, in his capaci t y as the execut or of Cat elli' s est at e and as
her heir, agai nst *eorge !illone and 3xcelsior to force a transfer of
Cat elli' s int er est to him. That compl ai nt was consolidat ed with the
action filed subse?ue nt l y by Thomas in the Chancery )i#ision,
=robat e =art see,i ng to ha#e the disput ed will admi t t ed to probat e.
The judge elect ed to first recei#e e#idence relati ng to
whet her the &%%' will shoul d be admi t t ed to probat e. "t the close
!
of the e#idence offered in fa#or of the admi ssion of the will, the trial
court held, first, that Thomas !illone had failed to demonst r at e that
Cat elli ,new the cont ent s of the docume nt s that she had signed.
elying on (arris #. !ander#eer ' s 3xecut or, @& +.$. 3?. 6'&, 6'A ;3.
B ". &C>8<, (ildret h #. 4arshall, 6& +.$. 3?. @1&, @68 ;=rerog. Ct.
&C%A< and )ay #. )ay, A +.$. 3?. 61%, 66A2 66 ;=rerog. Ct. &CA&<, the
judge reject ed the will. While each of these decisions includes a
discussi on of the effect of #isual impair ment on the ,nowing
executi on of a will, each of them arose in the cont ext of a disput e
based on allegat i ons of undue influence.
Thus, while each of these precede nt s reject ed a
proffer ed will execut ed by a test at or with a significant #isual or
other impair ment , none re?uires proof of ,nowing executi on
beyond that specified by the st at ut e. +.$./.". A.DA2 @E +.$./.". A.DA2
1. The judge, howe#er, reasoned that although the will had been
execut ed in accordanc e with the st at ut ory formalities, public policy
demands proof beyond compli ance with the formalities of
executi on if the test at or can no longer see. (e held that the will
was in#alid becaus e ther e was no e#idence from anyone other than
the sole benefici ary that the will had been read to Cat elli and that
she ,new what she was signing. (e ther efor e creat ed an additional
re?uir eme nt for probat e of a will execut ed by a #isually impair ed
person, citing public policy. We appr eci at e the trial judge' s concer n
that a test at rix with a se#er e #isual impair ment is ordinarily unabl e,
without the int er#enti on of a neut r al person, to det er mi ne if the will
as draft ed accur at el y memori ali-es her test a me nt ar y instructions.
The same, of course, is true of a test at or who cannot read by
reason of illiteracy. .ut whet her the st at ut ory pro#isions for the
witnessi ng and executi on of the wills of such test at or s should be
augme nt e d to re?uir e that the pre2 executi on readi ng of the will to
the test at or be by a disint er es t e d person is, in our #iew, a mat t er
within the pro#ince of the 5egislat ur e.
The court held We are satisfied, at least in this case, that we
need not further consider that issue becaus e, as the judge found,
this record spea,s so clearly of undue influence. The trial judge
addr ess ed the alt er nat e ground of undue influence using the
st andar d of a direct ed #erdict at the close of plaintiff' s proofs. .
1DA>2 @;b<. (e found that ther e was a confidenti al relationshi p
bet ween the decedent and the benefici ary, that ther e were

suspicious circumst a nc e s surroundi ng the executi on, that undue

influence was ther efor e presume d, that the burden to o#ercome
the presumpt i on ther efor e shift ed to Thomas and that the record
befor e the court made it impossi bl e for him to carry that burden.
(e ther efor e refused to admi t the will to probat e, dismi ssed the
compl ai nt agai nst *eorge !illone and 3xcelsior, admi t t ed Cat elli' s
&%%1 will to probat e, appoi nt ed *eorge !illone as the "dminist r at or
C.T."., direct ed Thomas to rest or e asset s to the est at e and
appro#ed fees and commi ssi ons. We agr ee with the judge' s
alt er nat e analysi s of the probat e disput e and we affirm on that
ground.
!iewed in ter ms of undue influence, ther e can be no doubt
about the issues befor e us. The judge identified se#er al factors that
suppor t ed his analysi s of undue influence, including the fact that
Thomas ret ai ned his own att or ney to prepar e the docume nt s, that
he did so based only on the con#er s at i on with )r. Coppol a and
without any consul t ati on with Cat elli herself, that the document s
were mar,edly different from Cat elli' s prior will, that Cat elli was
#ery debilit at ed and #ulner abl e, that the effect of the docume nt s
was an immedi at e #esti ng of control of all asset s in Thomas
through the inter #i#os trust docume nt , and that Thomas
immedi at el y upon the deat h of )r. Coppol a left his employment
and by means of the power of at t orney began to pay himself a
commi ssi on and dispens e d subst ant i al gifts to himself and his
immedi at e family, which bespo,e self2 dealing e#en prior to the
time of the executi on of the disput ed docume nt s.
The court held We concur with the judge' s analysi s of the
effect of thes e fact s. 0irst, Cat elli was clearly not well. The nursing
admi ni st r at or who saw her daily conceded that , while she had
made progr ess in reco#eri ng from her stro,e, her le#el of
functioning was seriously diminished. (er short2 ter m memor y was
significantly impair ed. (er #ision had det erior at ed subst ant i ally.
/he re?uir ed tot al car e by the st aff at the nursi ng home, needi ng
daily assist ance with feedi ng, bat hi ng, and other basic needs.
)uring the three days prior to the executi on of the document , she
did not lea#e her room, but remai ned in bed, do-ing from time to
time and bar ely communi cat i ng with anyone. While she was
undoubt edl y fond of Thomas, who was #irtually her only #isitor aft er
the deat h of )r. Coppol a, she was especi ally #ulner abl e to his
(
influence.
4oreo#er, Thomas act ed in a manner which made his
int entions clear. 3#en accept i ng as true his testi mony that he
learned from )r. Coppol a that Cat elli int ended to ma,e him her
sole heir, his beha#i or pro#es that he act ed so as to o#erbear her
will. (e made no effort to discuss Cat elli' s int entions with her prior
to acting for his unilat er al benefit. (e ,new that Cat elli had an
at t orney in +ew $ersey who had prepar ed at least one earlier will,
but he depri#ed Cat elli of the opport uni t y to consult with him. (e
did so in spit e of the urging of his personal at t orney from "ri-ona to
ha#e the document s re#iewed by +ew $ersey couns el and to gi#e
Cat elli the benefit of independe nt legal ad#ice. (e ,new as well
that the &%%1 will left significant asset s to the two churches and a
hospit al, left numer ous specific be?ues t s to friends and to a few
family member s, and included him only as one of the residuary
benefici ari es. +onet hel es s, he made no effort to discuss with Cat elli
why all were to be reject ed in fa#or of him alone.
+or did he simply carry out the instruction that he be
made her sole heir. Inst ead, he used his own at t or ney to secur e
immedi at e control of her asset s. (e ,new that Cat elli had not
pre#iously utili-ed a trust and he ,new from his own lawyer that a
li#ing trust with a pour2 o#er will would gi#e him control befor e
Cat elli died. In fact as soon as he had the ability to exerci se any
control through the power of at t or ney, he ga#e 7A8, 888 in gifts to
himself, his wife and his daught er , an act well in excess of any prior
expr essi on of gener osi t y by Cat elli and not one she aut hori-ed.
/hortly ther eaft er , he embar ,ed on a new career, hiring himself to
be the full time manager of her asset s, in spit e of his lac, of any
rele#ant training or experi ence. Those act s are the beha#ior not of
one with Cat elli' s int er est s at hear t , but of one bent on his own
enrichment at her expens e.
The law go#er ni ng undue influence is well est ablished. While
we gener ally presume that the test at or is of sound mind and
compet e nt to execut e a will, *ellert #. 5i#ingst on, 6 +.$. '6, >&
;&%68<, e#en a will which on its face appear s to ha#e been #alidly
execut ed can be o#ert ur ned upon a demonst r at i on of undue
influence. (aynes #. 0irst +at'l /tat e .an,, C> +.$. &'A, &>62 >'
;&%C&<. /imilarly, an inter #i#os transfer, as was this trust, is
e?ually go#er ned by the undue influence analysis. In re )odge, 68
"2
+.$. &%@, @@>2 @% ;&%'><E see =ascal e #. =ascal e, &&A +.$. @8, @%2 A&
;&%CC<.
Fndue influence is "defined as ' ment al , mor al or physical'
exertion which has dest royed the 'free agency of a test at or ' by
pre#enti ng the test at or 'from following the dict at es of his own mind
and will and accepti ng inst ead the domi nat i on and influence of
anot her. ' " (aynes #. 0irst +at' l /tat e .an,, supr a, C> +.$. at &>'
;?uoti ng In re +euman, &AA +.$. 3?. 6A@, 6A1 ;3. B ". &%1A<<. Wher e
the will benefit s one who enjoyed a confidenti al relationshi p with
the test at or, and wher e ther e are suspicious circumst anc e s
surroundi ng the will, the law presume s undue influence and the
burden is upon the proponent of the will to dispro#e the
presumpt i on. In re ittenhous e' s Will, &% +.$. A>', A>C2 >% ;&%66<.
The court held The confidenti al relationshi p bet ween
Thomas and Cat elli is bot h plain and conceded. /ee (aynes #. 0irst
+at'l /tat e .an,, supr a, C> +.$. at &>'E In re 3st at e of (opper, % +.$.
@C8, @C@ ;&%6@<. The suspicious circumst anc e s surroundi ng the will
need only be "slight" to shift the burden of proof to the proponent
to o#ercome them. /ee In re 3st at e of 5ehner, >8 +.$. 1A1, 1A'
;&%>'<E In re .la,e' s Will, @& +.$. 68, 662 6' ;&%6'<.9nce the burden
has shift ed, the will proponent must o#ercome that presumpt i on by
a preponder a nc e of the e#idence. (aynes #. 0irst +at'l /tat e .an,,
supr a, C> +.$. at &>>2 >CE In re 3st at e of Wee,s, @% +.$. /uper. 6AA,
6AC2 A% ;"pp. )i#. &%61<E see In re 3st at e of Churi,, &'6 +.$. /uper.
&, 6 ;"pp. )i#. &%>C<, aff' d o.b., >C +.$. 6'A ;&%>%<. /ee also =ascal e
#. =ascal e, supr a, &&A +.$. at A& ;holding that donee of inter #i#os
gift bear s burden of proof by clear and con#incing e#idence<.
The court held The record befor e us discloses no e#idence
by which Thomas could meet this burden. 9n the contr ary, the
record is o#erwhel mi ngly suppor ti#e of the finding of undue
influence. The combi nat i on of the confidenti al relationshi p and the
suspicious circumst a nc e s was mor e than sufficient to shift the
burden to Thomas. The absence of any e#idence tendi ng to negat e
the presumpt i on and the abundant e#idence of self2 dealing by
Thomas suppor t the conclusion that the test at or ' s will was
o#erbor ne. The trial judge, ha#ing hear d and consi der ed the
e#idence, appropri at el y found that the burden that had shift ed to
Thomas was one that he was unabl e to carry. "ffirmed.
htt*D88www.nj l aws.com8JndueKinfl uenceK,yKfami l y.ht m
""
KENNETH VERCAMMEN A!!"CIATE!# PC
ATT"RNE$ AT %AW
12%$ ;ood,ri dge 4ve.
?dison, NJ 2"!
'7hone) !$1& %!1& 2%22
'Fa-) !$1& %!1& 22$2

TRIA% AND %ITI&ATI"N E'PERIENCE
/n his *ri vate *ractice, he has devoted a su,stanti al *ortion of his *rofessional
ti me to the *re*arati on and trial of liti gated matters. He a**ears in +ourts
throughout New Jersey several times each week on many *ersonal injury matters,
+rimi nal and 0unici*al8traffic +ourt trials, 7ro,ate hearings, and contested
admi nistrati ve law hearings.
0r. Iercammen served as the 7rosecutor for the .ownshi* of +ran,ury,
0iddlese- +ounty and was invol ved in trials on a weekl y ,asis. He also argued all
*re& trial motions and *ost& trial a**licati ons on ,ehalf of the State of New Jersey.
He has also served as a S*ecial 4cting 7rosecutor in ;ood,ri dge, 7erth
4m,oy, Hightstown, +arteret, ?ast Brunswick, James,urg, South Brunswick, South
Eiver and South 7lainfiel d for conflict cases. Since "((, he has *ersonal l y handled
hundreds of cri mi nal and motor vehicle matters as a 7rosecutor and now as defense
counsel and has had su,stanti al success.
7reviousl y, 0r. Iercammen was 7u,lic 5efender for the .ownshi * of ?dison
and Borough of 0etuchen and a 5esignated +ounsel for the 0iddlese- +ounty 7u,lic
5efenderL s Office. He re*resented indi gent indi vi duals facing conse9uences of
magni tude. He was in +ourt tryi ng cases and maki ng motions in difficul t cri mi nal and
5;/ matters. ?very case he *ersonall y handled and *re*ared.
His resume sets forth the numerous ,ar associations and acti vi ti es which
demonstrate his commi t ment to the legal *rofession and *rovi di ng 9uali ty
re*resentati on to clients.
Since "(%, his *ri mary concentrati on has ,een on litigati on matters. 0r.
Iercammen gained other legal e-*eriences as the +onfidenti al :aw +lerk to the
+ourt of 4**eals of 0aryland 'Su*reme +ourt) with the 5elaware +ounty, 74 5istrict
4ttorney Office handli ng 7ro,a,le +ause Hearings, 0iddlese- +ounty 7ro,ation
5e*artment as a 7ro,ation Officer, and an ?-ecuti ve 4ssistant to Scranton 5istrict
0agistrate, .homas Hart, in Scranton, 74.
"1