Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Thursday, December 31, 2020

Request for Production of Documents in Personal Injury Cases Against Defendants

By Kenneth Vercammen, Esq.

In Personal Injury cases the plaintiff's attorney will demand the Defendant provide Certified Answers to Uniform Interrogatories Form C, plus C(1) Interrogatories in Auto cases ( or C (2) if this is a non- Auto case), to be answered within 60 days pursuant to Rule 4:17-1 et seq. Kenneth Vercammen's office will also demand a Request for Production of Documents pursuant R. 4:18-1, which includes a Demand for Discovery of Insurance. The following are some of the documents we serve on the defendant when we are representing an injured plaintiff:

PLEASE TAKE NOTICE that the Plaintiff demands that the Defendant produce for inspection and copying pursuant to Rule 4: 18-1, the following documents at the offices of Kenneth A. Vercammen, Esq., 2053 Woodbridge Avenue, Edison, New Jersey 08817, on _______ [insert 30 days from date of preparation of req docs] at 10:00 a.m.:

1. Declaration Sheet for the insurance policy of the defendant.

2. Copies of all medical reports and records in your possession relating to the injuries sustained by the plaintiff as a result of this accident.

3. Copies of all medical reports and records in your possession relating to any prior or subsequent injuries sustained by the plaintiff.

4. Copies of all photographs in your possession which depict either damage to the vehicle sustained in the accident, injuries sustained by the plaintiff, the accident scene and/or any other photographs which relate to this case.

5. Copies of repair estimates for defendant's car and any other car or object damaged as a result of the accident.

6. Copies of repair bills for defendant's car and any objects damaged in the accident.

7. Any and all expert reports whether or not intended for use at time of trial.

8. Copies of any income tax returns or documents which refer to plaintiff's employment within your possession.

9. All documents not otherwise produced which relate or refer to the matters in issue.

10. Any and all documents which you have received in connection with this matter which mention plaintiff's name and were not received by you from plaintiff's attorney.

11. Any and all documents or correspondence submitted to or received from anyone concerning the subject matter of this litigation.

12. Any and all documents which you intend to rely on at trial.

13. Copies of any pleadings filed by any party in this matter.

14. All other parties answers to interrogatories.

15. Copies of all Requests for Admissions and responses exchanged to date.

16. A complete copy of all records or documents obtained by subpoena.

17. All transcripts of depositions pertaining to this matter.

18. Any and all statements made by any party to this litigation, their agents, representatives or employees, whether written or oral.

19. With respect to all expert witnesses, including treating physicians, who are expected to testify at trial, and with respect to any person who has conducted an examination pursuant to Rule 4:19, state each such witness's name, address and area of expertise and attach a true copy of all written reports provided to you. If a report is not written, supply a summary of any oral report provided to you.

20 Attach hereto a copy of your itemized car phone bill for the date of the accident.

DEMAND FOR DISCOVERY OF INSURANCE COVERAGE

Pursuant to R. 4:10-2(b) demand is hereby made that you disclose to the undersigned whether there are any agreements or policies under which any person or firm carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment. YES ( ) NO ( )

If the answer is "yes" attach a copy of each or in the alternative state, under oath or certification (a) number (b) name and address of insurer or issuer (c) inception and expiration dates (d) names and addresses of all persons insured thereunder (e) personal injury limits (f) property damage limits (g) medical payment limits (h) name and address of person who has custody and possession thereof (i) where and when each policy or agreement can be inspected and copied.

(a)

NOTE: This Demand pertains to all policies insuring the defendant(s) in connection with the subject claim, regardless of whether the coverage is primary or excess. This demand pertains to policies owned by the defendant(s) and to policies insuring the defendant(s) and owned by others.

I certify this information to be true.

__________________________

REQUEST FOR PRODUCTION OF DOCUMENTS - FALL DOWN TO DEFENDANT RECORDS TO BE PRODUCED

1. All documents relating to the statements of witnesses to the occurrence alleged in the complaint including witnesses who were within sight or hearing of the occurrence or have knowledge from any source as to how it is thought to have occurred. 2. All documents relating to statements of any of the individual parties herein or officers or managing agents of any corporate parties herein. 3. All documents relating to the manner of the occurrence, the events giving rise or leading up to it and the cause thereof, other than any statements of witnesses or parties produced in response to any of the preceding requests. 4. All photographs of the scene of the occurrence. 5. All documents relating to the conditions at the scene of the occurrence (e.g., where appropriate, roadway, surface, weather, construction, traffic signals or signs) at the time of plaintiff's fall.

6. All documents relating to the investigation of the occurrence by or on behalf of any party herein other than those produced in response to any of the preceding requests. 7. All documents relating to the inspection or supervision of activities, if any, at the scene of the occurrence and at the time thereto. 8. All documents relating to complaints to defendant about the premises. 9. All documents in the nature of any expert reports concerning the explanation for or cause of the occurrence. 10. All documents relating to the identity of any statute, ordinance or governmental code which it is alleged defendant complied with on the date of the accident. 11. Copies of any sketches, diagrams or architects drawings of the subject premises described in the Complaint. (hereinafter "the premises"). 12. All accident, incident or investigation reports prepared regarding the matter described in the Complaint. 13. All accident, incident or investigation reports for any incidents for the period of 30 days after plaintiff's accident in which any individual, not limited to customers, employees, and contractors, either fell or indicated he or she suffered an injury on any location owned, operated, rented o controlled by the defendant which is located in the municipality where plaintiff's accident took place. 14. All documents referring to individuals injured on the subject premises during the two year period prior to plaintiff's accident and the two year period after plaintiff's accident, including but not limited to, Superior Court Civil Action Complaints. 15. Copies of all maintenance records, cleaning records and repair records regarding the area within 50 feet of plaintiff's accident for a period of 30 days prior to plaintiff's accident and 30 days after plaintiff's accident. 16. Any and all documents which defendant has received from plaintiff in connection with this matter. 17. All expert reports prepared by any individual in connection with the subject matter of this litigation. 18. Copies of any warning signs in the vicinity of plaintiff's accident which existed on the date of the accident or 90 days prior to or after plaintiff's accident. 19. All statements of defendant regarding this matter. 20. All statements by potential witness in this matter. 21. Any documents which defendant intends on relying at trial. 22. All documents not otherwise produced which relate to or refer to the premises.

COURT RULE 4:18. DISCOVERY AND INSPECTION OF DOCUMENTS AND PROPERTY, COPIES OF DOCUMENTS

4:18-1. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained and translated, if necessary, by the respondent through electronic devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of R. 4:10-2 and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of R. 4:10-2.

(b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. A copy of the request shall also be simultaneously served on all other parties to the action. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 35 days after the service of the request, except that a defendant may serve a response within 35 days after service of the summons and complaint upon that defendant. On motion, the court may allow a shorter or longer time. The written response, without documentation annexed but which shall be made available to all parties on request, shall be served by the party to whom the request was made upon all other parties to the action. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. The party submitting the request may move for an order of dismissal or suppression pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested.

(c) Persons not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to R. 4:11-1.

Request for Admissions Regarding Facts

Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation

Kenneth Vercammen, Esq. handles Civil cases where the damages exceed $15,000. Under the NJ Court Rules, in contested Civil cases we recommend our clients prepare short single sentence list of 10-50 sets of "facts", which the adversary should be required to admit. This is part of what is called "discovery." Court Rule 4:22-1. sets forth the Rule on Request for Admission: A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of the documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny. When we serve the Request for Admissions, the individual statements should be written so that the opposing side must Answer "admit" after each one. The following is the start of our form Request for Admissions. PLEASE TAKE NOTICE that the plaintiff demands of the above defendants answers under oath to the following Requests for Admissions within 30 days which is the time prescribed by law. Pursuant to Rule 4:22-1, an answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him to admit or deny. Any request not properly responded to shall be deemed admitted, pursuant to R. 4:22-1. 1. The accident occurred on ......

Removing an Executor from an Estate

Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Administrator of the Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.Ken Vercammen's office charges a $200 consult fee either in person or over the phone.

Executor Duties and Responsibilities

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which we've set out below.

In General, the executors job is to

1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).

Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Step 1: Probate. The executor must probate the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The court's decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.

Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Will/Trust Inheritance Contests

If you have evidence a Will was not prepared properly, the signer was incompetent, there was undue influence, you may be able to prevent the filing of the Will in probate if you immediately hire an attorney to file a Caveat to the Will.

A. Caveat

Is a formal notice by someone to prevent the proving of a Will or the grant of administration of an Estate. The following is one of the NJ Court Rules dealing with a Caveat to Will

RULE 4:82. MATTERS IN WHICH THE SURROGATE'S COURT MAY NOT ACT

Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogate's Court shall not act in any matter in which

(1) a caveat has been filed with it before the entry of its judgment;

(2) a doubt arises on the face of a will or a will has been lost or destroyed;

(3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;

(4) the application is to appoint an administrator pendente lite or other limited administrator;

(5) a dispute arises before the Surrogate's Court as to any matter; or

(6) the Surrogate certifies the case to be of doubt or difficulty.

If there is no dispute on the validity of the Will, sometimes the Executor does not do their job and you want to have the Executor removed and replaced.

Under New Jersey Law, the person selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries

Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to timely file tax returns, fail to keep records, misappropriate assets or ignore instructions under the Will.

In this case the Executor __ has failed to comply with the Duties of Executor in Probate & Estate Administration to:

1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point them in the direction of a potential asset, namely mineral rights;

2. Keep records of expenses

3. Timely Sell real estate

4 Timely File required inheritance tax returns and provide a copy to Kim

It is unclear if the executor timely preformed the below duties:

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries

File notice of Probate with Surrogate

File first Federal and State Income Tax

Prepare Inheritance Tax Return and obtain Tax Waivers

File waivers within 8 months upon receipt

Prepares a accurate Informal Accounting

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will

Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

Ken Vercammen's office charges a $200 consult fee either in person or over the phone.

Undue Influence to challenge a Will or Power of Attorney

A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account.Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

[Estate of Ostlund v. Ostlund,391 N.J. Super. 390, 401 (App. Div. 2007).]

Although perhaps difficult to define, the concept encompasses all relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists. Pascale v. Pascale,113 N.J. 20, 34 (1988) (internal citation omitted). And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships.DeFrank,supra, slip op. at 13 (citingOstlund,supra, 391N.J. Super.at 401).

In the context of inter vivos gifts, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done.Pascale,supra, 113N.J.at 30 (internal citations omitted). Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage,In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and the donee has the burden of showing by clear and convincing evidence not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.In re Estate of Mosery,349 N.J. Super. 515, 522-23 (App. Div. 2002) (citingIn re Dodge,50 N.J. 192, 227 (1967)).

The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.

One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof establishing undue influence shifts to the proponent when a will benefits a person who stood in a confidential relationship to the decedent and there are suspicious circumstances, which need explanation. The suspicious circumstances need only be slight. Id. at 176. Moreover, when the evidence is almost entirely in the possession of one party and the evidence points to the proponent as asserting undue influence, a clear and convincing standard may be applied rather than the normal burden of proof of preponderance of the evidence. Id. at 183.

Furthermore, the Haynes analysis was extended to situations in which there is a transfer of property where the beneficiary of the property and an attorney is on one side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).

The court in Oachs determined that under circumstances such as these the donee bears the burden of proof to establish the validity of the gift, even in situations in which the donee did not dominate the decedents will. Id. at 485. This rule was established to protect a donor from making a decision induced by a confidential relationship the donee possesses with the donor. Id. Again, the burden is a clear and convincing standard. Id.

The Supreme Court in Pascale v. Pascale, 113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a donee that he/she is dependent upon, a presumption arises that the donor did not understand the consequences of his/her act. In these situations the donee must demonstrate that the donor had disinterested and competent counsel. Id. Likewise, undue influence is conclusive, when a mentally or physically weakened donor makes a gift without advice or a means of support, to a donee upon whom he/she depends. Id.

A confidential relationship can be found to exist when one is certain that the parties dealt on unequal terms. In re Stromings Will, 12 N.J. Super. 217, 224 (1951). The appropriate inquiry is if a confidential relationship existed, did the parties deal on terms and conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948).

Suspicious circumstances are not required to create a presumption of undue influence with regard to inter vivos gifts and the presumption of undue influence is more easily raised in an inter vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v. Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987).

Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N.J. 20, 29 (1988). However, when a party alleges undue influence with regard to an inter vivos gift, the contesting party must prove undue influence existed or that a presumption of undue influence should arise. Pascale, supra, 113 N.J. at 30.

A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id.; see also Seylaz v. Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v. Stanton, 280 N.J. Super. 478 (App. Div. 1995) (holding that where a confidential relationship existed and that the donor did not rely upon the donee, a shifting of the burden was still appropriate); In re Neumans Estate, 133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos.)

The In re Dodge court explained why a presumption of undue influence arises in a confidential relationship and stated: In the application of this rule it is not necessary that the donee occupy such a dominant position toward the donor as to create an inference that the donor was unable to assert his will in opposition to that of the donee. In Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in explaining the rules application:

Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee, as it is to afford him protection against the consequences voluntary action on his part induced by the existence of the relationship between them, the effect of which upon his own interests he may only partially understand or appreciate. In re Dodge, supra, 50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A. 1904).

In sum, once it is proven that a confidential relationship exists the burden shifts to the donee to show by clear and convincing evidence that no undue influence was used. Although the case law indicates suspicious circumstances need not be shown the donee must show all was fair, open and voluntary, no deception was practiced and that the transaction was well understood. Pascale, supra, 113 N.J. at 31; see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra, 5 N.J. at 173. Furthermore, confidential relationships arise in all types of relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.In re Fulpers Estate, 99 N.J. Eq. 292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34. It appears confidential relationships exist in all cases in which:

The relations between the [contracting] parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable. Pascale, supra, 113 N.J. at 34, quoting In re Fulper, supra, 99 N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.

In determining whether the Defendant was the dominant person in the relationship there is no clear-cut rule and instead the court must look to the particular circumstances of the matter. In re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18 N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper the court determined that a confidential relationship existed in a father-son relationship in which the father was advanced in age, weak and physically depended upon the son. Moreover, since the father sought the sons assistance on business matters, lived with the son during the winter months and gave the son joint and several power over his checking account an actual repose of trust and confidence in the son was demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.

In the Giacobbi case, supra, a confidential relationship was determined to exist between a mother and daughter, even though the mother did not suffer from mental or physical infirmity. There the mother was found to be alert, active, and somewhat independent. However, she turned to the daughter for small issues and problems when they occurred. Giacobbi, supra, 18 N.J. Super. at 617.

Therefore, the burden can shift to Defendant to prove by clear and convincing evidence the transaction was not unduly influenced. Furthermore, where a donor makes an improvident gift to the donee upon whom she depends that strips the donor of all or virtually all their assets, as here, a presumption arises that the donor did not understand the consequences of their act. Pascale, supra, 113 N.J. at 31, citing Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). Under those circumstances the donee must establish that the donor had the advice of competent and disinterested counsel. Id. citing Vanderback, supra, 1 N.J .at 488-89.

Similarly, when a mentally or physically weakened donor makes a gift to a donee whom the donor is dependent upon, without advice, and the gift leaves the donee without adequate means of support, a conclusive presumption of undue influence arises. Id. citing Seylaz, supra, 5 N.J. at 173. However, when a donor is not dependent upon the donee independent advice is not a prerequisite to the validity of an improvident gift even though the relationship between the parties is one of trust and confidence. Id. citing Seylaz, supra, 5 N.J. at 173.

Although suspicious circumstances are not required to be established in an inter vivos transfer for a presumption of undue influence to exist, thereby shifting the burden of proof, Plaintiff has raised the issue. Pascale, supra, 113 N.J. at 30.

If Undue Influence was Clear, the Will of the Elderly Testatrix is Denied Admission to Probate.

The testatrix's Will was properly rejected as the product of undue influence because the proponent and the testatrix had a confidential relationship and because there were suspicious circumstances surrounding the execution of the will.

In Re Probate of the Last Will and Testament of Catelli 361 NJ Super. 478 (App. Div. 2003)

In the Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust, which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust.

The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiff's case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the courts public policy rationale.

Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self- employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brothers death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so.

Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyers office in Maplewood, which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyer's office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later.

Following Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppola's son all of the papers relating to Catelli's assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.

Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her.

After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an X on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli's assets and undertook to gain control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli's death, Thomas efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli's interest in Excelsior over to Thomas. He continued to refuse after Catelli's death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli's estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli's interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate.

The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence.

Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy. We appreciate the trial judges concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature.

The court held We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence. The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiff's proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli's 1994 will to probate, appointed George Villone as the Administrator C.T.A., directed Thomas to restore assets to the estate and approved fees and commissions. We agree with the judges alternate analysis of the probate dispute and we affirm on that ground.

Viewed in terms of undue influence, there can be no doubt about the issues before us. The judge identified several factors that supported his analysis of undue influence, including the fact that Thomas retained his own attorney to prepare the documents, that he did so based only on the conversation with Dr. Coppola and without any consultation with Catelli herself, that the documents were markedly different from Catellis prior will, that Catelli was very debilitated and vulnerable, that the effect of the documents was an immediate vesting of control of all assets in Thomas through the inter vivos trust document, and that Thomas immediately upon the death of Dr. Coppola left his employment and by means of the power of attorney began to pay himself a commission and dispensed substantial gifts to himself and his immediate family, which bespoke self-dealing even prior to the time of the execution of the disputed documents.

The court held: We concur with the judges analysis of the effect of these facts. First, Catelli was clearly not well. The nursing administrator who saw her daily conceded that, while she had made progress in recovering from her stroke, her level of functioning was seriously diminished. Her short-term memory was significantly impaired. Her vision had deteriorated substantially. She required total care by the staff at the nursing home, needing daily assistance with feeding, bathing, and other basic needs. During the three days prior to the execution of the document, she did not leave her room, but remained in bed, dozing from time to time and barely communicating with anyone. While she was undoubtedly fond of Thomas, who was virtually her only visitor after the death of Dr. Coppola, she was especially vulnerable to his influence.

Moreover, Thomas acted in a manner, which made his intentions clear. Even accepting as true his testimony that he learned from Dr. Coppola that Catelli intended to make him her sole heir, his behavior proves that he acted so as to overbear her will. He made no effort to discuss Catelli's intentions with her prior to acting for his unilateral benefit. He knew that Catelli had an attorney in New Jersey who had prepared at least one earlier will, but he deprived Catelli of the opportunity to consult with him. He did so in spite of the urging of his personal attorney from Arizona to have the documents reviewed by New Jersey counsel and to give Catelli the benefit of independent legal advice. He knew as well that the 1994 will left significant assets to the two churches and a hospital, left numerous specific bequests to friends and to a few family members, and included him only as one of the residuary beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all were to be rejected in favor of him alone.

Nor did he simply carry out the instruction that he be made her sole heir. Instead, he used his own attorney to secure immediate control of her assets. He knew that Catelli had not previously utilized a trust and he knew from his own lawyer that a living trust with a pour-over will would give him control before Catelli died. In fact as soon as he had the ability to exercise any control through the power of attorney, he gave $30,000 in gifts to himself, his wife and his daughter, an act well in excess of any prior expression of generosity by Catelli and not one she authorized. Shortly thereafter, he embarked on a new career, hiring himself to be the full time manager of her assets, in spite of his lack of any relevant training or experience. Those acts are the behavior not of one with Catelli's interests at heart, but of one bent on his own enrichment at her expense.

The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale, 113 N.J. 20, 29-31 (1988).

Undue influence is defined as mental, moral or physical exertion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another. Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the will, the law presumes undue influence and the burden is upon the proponent of the will to disprove the presumption. In re Rittenhouses Will, 19 N.J. 376, 378-79 (1955).

The court held: The confidential relationship between Thomas and Catelli is both plain and conceded. See Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280, 282 (1952). The suspicious circumstances surrounding the will need only be slight to shift the burden of proof to the proponent to overcome them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blakes Will, 21 N.J. 50, 55-56 (1956).Once the burden has shifted, the will proponent must overcome that presumption by a preponderance of the evidence. Haynes v. First Nat'l State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J. Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J. Super. 1, 5 (App. Div. 1978), aff'd o.b., 78 N.J. 563 (1979). See also Pascale v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears burden of proof by clear and convincing evidence).

The court held The record before us discloses no evidence by which Thomas could meet this burden. On the contrary, the record is overwhelmingly supportive of the finding of undue influence. The combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The absence of any evidence tending to negate the presumption and the abundant evidence of self-dealing by Thomas support the conclusion that the testator's will was overborne. The trial judge, having heard and considered the evidence, appropriately found that the burden that had shifted to Thomas was one that he was unable to carry. Affirmed.

Removing the Executor of a Probate Estate

By Kenneth A. Vercammen, Esq.

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court. If there is no Will, someone can petition the surrogate to be appointed as administrator of the estate.

COMPLAINT FOR ACCOUNTING

A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.

A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front. We charge a consult fee of $200 to discuss the case.

The plaintiff can demand the following:

(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.

(3) Payment of plaintiffs attorneys fees and costs of suit for the within action.

(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.

(5) That the executor be removed as the executor/administrator of the estate and that someone else be named as administrator of the estate.

(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.

EXECUTORS COMMISSIONS

Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.

However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.

SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent

3) compel the appraisal of the home and, thereafter, the sale of the property

4) make the executor reimburse the estate for the neglect or waste of assets.

FILING SUIT IN AN ESTATE CONTEST

RULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATE'S COURT NOT ABLE TO ACT

4:84-1. In General

In any case in which, under R. 4:82, the Surrogate's Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.

4:84-2. Probate in the Superior Court

If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogate's Court. Letters of appointment shall then be issued by the Surrogate's Court.

4:84-3. Contested Administration

Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogate's Court.

4:84-4. Appointment of Substituted Trustees

An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.

4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator

No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.

RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATE'S COURT: GENERAL PROVISIONS

4:85-1. Complaint; Time for Filing

If a will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.

4:85-2. Enlargement of Time

The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.

4:85-3. After-Discovered Will

(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.

(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE Edison Adult School -Wills, Elder Law & Probate- 2011, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecelia/ Woodbridge Seniors 2002; Temple Beth Or 2002; -Linden AARP 2002 Woodbridge Housing 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001 -Wills and Estate Administration - Woodbridge Adult School 2001, 2000,1999,1998,1997,1996 -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peters-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School 1999,1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -Legal Questions Clinic Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991

New Jersey Superior Court - Certified Mediator 1997- New Jersey Supreme Court Committee on Municipal Court Education: Appointed by Chief Justice Robert N. Wilentz 1990 - 1997

2C:007-002 Registration of Sex Offenders (Megans Law); Definition; Requirements; Penalties

2. a. (1) A person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sex offense as defined in subsection b. of this section shall register as provided in subsections c. and d. of this section.

(2)A person who in another jurisdiction is required to register as a sex offender and (a) is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school, or (b) is employed or carries on a vocation in this State, on either a full-time or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall register in this State as provided in subsections c. and d. of this section.

(3)A person who fails to register as required under this act shall be guilty of a crime of the third degree.

b.For the purposes of this act a sex offense shall include the following:

(1)Aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1 or an attempt to commit any of these crimes if the court found that the offenders conduct was characterized by a pattern of repetitive, compulsive behavior, regardless of the date of the commission of the offense or the date of conviction;

(2)A conviction, adjudication of delinquency, or acquittal by reason of insanity for aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to paragraph (2) of subsection c. of N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or (4) or subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); criminal sexual contact pursuant to N.J.S.2C:14-3b. if the victim is a minor; kidnapping pursuant to N.J.S.2C:13-1, criminal restraint pursuant to N.J.S.2C:13-2, or false imprisonment pursuant to N.J.S.2C:13-3 if the victim is a minor and the offender is not the parent of the victim; knowingly promoting prostitution of a child pursuant to paragraph (3) or paragraph (4) of subsection b. of N.J.S.2C:34-1; or an attempt to commit any of these enumerated offenses if the conviction, adjudication of delinquency or acquittal by reason of insanity is entered on or after the effective date of this act or the offender is serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the offense or is confined following acquittal by reason of insanity or as a result of civil commitment on the effective date of this act;

(3)A conviction, adjudication of delinquency or acquittal by reason of insanity for an offense similar to any offense enumerated in paragraph (2) or a sentence on the basis of criteria similar to the criteria set forth in paragraph (1) of this subsection entered or imposed under the laws of the United States, this State or another state.

c.A person required to register under the provisions of this act shall do so on forms to be provided by the designated registering agency as follows:

(1)A person who is required to register and who is under supervision in the community on probation, parole, furlough, work release, or a similar program, shall register at the time the person is placed under supervision or no later than 120 days after the effective date of this act, whichever is later, in accordance with procedures established by the Department of Corrections, the Department of Human Services, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) or the Administrative Office of the Courts, whichever is responsible for supervision;

(2)A person confined in a correctional or juvenile facility or involuntarily committed who is required to register shall register prior to release in accordance with procedures established by the Department of Corrections, the Department of Human Services or the Juvenile Justice Commission and, within 48 hours of release, shall also register with the chief law enforcement officer of the municipality in which the person resides or, if the municipality does not have a local police force, the Superintendent of State Police;

(3)A person moving to or returning to this State from another jurisdiction shall register with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police within 120 days of the effective date of this act or 10 days of first residing in or returning to a municipality in this State, whichever is later;

(4)A person required to register on the basis of a conviction prior to the effective date who is not confined or under supervision on the effective date of this act shall register within 120 days of the effective date of this act with the chief law enforcement officer of the municipality in which the person will reside or, if the municipality does not have a local police force, the Superintendent of State Police;

(5)A person who in another jurisdiction is required to register as a sex offender and who is enrolled on a full-time or part-time basis in any public or private educational institution in this State, including any secondary school, trade or professional institution, institution of higher education or other post-secondary school shall, within ten days of commencing attendance at such educational institution, register with the chief law enforcement officer of the municipality in which the educational institution is located or, if the municipality does not have a local police force, the Superintendent of State Police;

(6)A person who in another jurisdiction is required to register as a sex offender and who is employed or carries on a vocation in this State, on either a full-time or a part-time basis, with or without compensation, for more than 14 consecutive days or for an aggregate period exceeding 30 days in a calendar year, shall, within ten days after commencing such employment or vocation, register with the chief law enforcement officer of the municipality in which the employer is located or where the vocation is carried on, as the case may be, or, if the municipality does not have a local police force, the Superintendent of State Police;

(7)In addition to any other registration requirements set forth in this section, a person required to register under this act who is enrolled at, employed by or carries on a vocation at an institution of higher education or other post-secondary school in this State shall, within ten days after commencing such attendance, employment or vocation, register with the law enforcement unit of the educational institution, if the institution has such a unit.

d.Upon a change of address, a person shall notify the law enforcement agency with which the person is registered and shall re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address. Upon a change of employment or school enrollment status, a person shall notify the appropriate law enforcement agency no later than five days after any such change. A person who fails to notify the appropriate law enforcement agency of a change of address or status in accordance with this subsection is guilty of a crime of the fourth degree.

e.A person required to register under paragraph (1) of subsection b. of this section or under paragraph (3) of subsection b. due to a sentence imposed on the basis of criteria similar to the criteria set forth in paragraph (1) of subsection b. shall verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General. A person required to register under paragraph (2) of subsection b. of this section or under paragraph (3) of subsection b. on the basis of a conviction for an offense similar to an offense enumerated in paragraph (2) of subsection b. shall verify his address annually in a manner prescribed by the Attorney General. One year after the effective date of this act, the Attorney General shall review, evaluate and, if warranted, modify pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the verification requirement. Any person who knowingly provides false information concerning his place of residence or who fails to verify his address with the appropriate law enforcement agency or other entity, as prescribed by the Attorney General in accordance with this subsection, is guilty of a crime of the fourth degree.

f.Except as provided in subsection g. of this section, a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

g.A person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation.

39:4-050.2 Refusal to Take Breath Test

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

At our recent NJ Bar seminar, the materials book outlined one of the defenses to refusal.

The question presented on this court is this:  Can the State convict a defendant of refusing to submit breath samples if the proofs fail to establish beyond a reasonable doubt that the driver understood a standard statement that was read to the driver?


Our Supreme Court so recognized with its recognition of the confusion doctrine in State v. Leavitt 107 N.J. 534, 542 (1987) Confusion was also acknowledged as a defense to refusal in DMV v Schaltz 4 NJAR 61 (1980)


On a Refusal charge, the courts/jury has to be very sure “the defendant refused to submit to a breath test test.” Refusal is defined as anything short of an unqualified, unequivocal assent to take the breath test test.  State v. Pandoli 109 N.J. Super 1 (App. Div. 1990).  However, it has been held that an exception to the general rule exists where the defendant proves he was confused.  State v. Leavitt 107 N.J. 542 (527 A.2d 403).  In particular, a defendant successfully challenges a refusal charge when he shows that, after being given his Constitutional Rights and read the requirement that he take a Breath test, he was confused between the two.  Id.    The Miranda warnings state that a defendant has the right to remain silent and the right to consult with an attorney; the “implied consent” warnings or Breath test requirement specifically inform the suspect that the right to remain silent and consult with an attorney do not apply to the taking of breath tests.  State v. Sherwin 236 N.J. Super. 517 (566 A.2d 536).    The fact that the two statements are read one after the other but, at the same time are inherently inconsistent, has been found to confuse suspects.  Id. at 518.  To avoid confusion regarding the two, the arresting officer should advise the suspect that his right to consult with an attorney before giving any oral or written statement does not give him the right to refuse to give or delay giving the breath sample when requested.  Leavitt  at 541-542.

In order to prove confusion, the defendant has the burden of proving the claim utilizing a record that has been developed to show that he had indeed been confused.  Leavitt at 542.  The record may be comprised of videotape of the defendant’s breath testing proceedings, together with all other exhibits and evidence, to sustain the conclusion that the defendant had not been apprised of the relevant legal principles and was confused with respect to the exercise of his rights.  Id


Thus, the municipal court must determine, and the State must prove, whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer....”  The State must prove these elements beyond a reasonable doubt. State v. Cummings, 184 N.J. 84 (2005). Proof beyond a reasonable doubt is a very strict standard and means that the jury or judge must be very sure the defendant has done something.  In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)


The elements at issue in this case are whether he refused to submit to the test upon request of the officer..., N.J.S. 39:4-50.4a(a). and whether the taking of samples [was] made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a).

The Act requires, “A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. N.J.S. 39:4-50.2(e).  This statement, by statute, mandates that the police officer shall inform the person tested of the rights N.J.S. 39:4-50.2(d)  of the following:


“Zealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses. State v. Chun, 194 N.J. 118 (2008)  and from time to time, courts must re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal. Id. at 74

II  Modern Notions of Due Process and Fair Play Dictate that a Confused Arrestee Should Be Informed of penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt


The NJ Supreme Court held in State v. Marquez 202 NJ 485 (2010)  that the refusal warning should be worded so a driver understands the penalties for refusal.

In the Marquez case involving a conviction for refusing to submit to a chemical breath test, the Court held that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so.  The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands.  Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

   Also in State v. Marquez 202 NJ 485 (2010), the Supreme Court cited to the decision in Leavitt and did not overrule Leavitt


Refusal penalties are significant.  In contrast with the earlier penalties, a first-time offender who today is convicted of refusing to submit to a breath test test after being arrested for driving while intoxicated faces a suspension of the driving privileges for a minimum of seven months to a maximum of twelve months, a fine of not less than $500, and mandatory confinement of twelve to forty-eight hours at an Intoxicated Driver Resource Center.  ***  Those penalties increase for repeat offenders as well as for those offenses committed on or within 1,000 feet of school property or while driving through a school crossing.  Those convicted must also pay thousands of dollars in surcharges to the State.

Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character.  For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings, supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier, 157 N.J. 475 (1999) despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.


III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to the driver was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict the driver


The defendant must prove they were confused by the conflicting Miranda warnings, then Paragraph 36.


39:4-50.4a Refusal to properly submit to chemical test (penalty provision at N.J.S.A. 39:4-50.4a(a) Refusal Statute is 30:4-50.2

1st Offense - $300 to $500 fine, and

and

- DDEF $100, and approx another $300 in court fees

- shall refer offender to IDRC. And $3,000 MVC surcharges

- mandatory car ignition interlock for 6 months-12 months at your expense

Interlock The municipal court shall [revoke the right to operate a motor vehicle of] order any [operator] person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), [shall refuse] refuses to submit , upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) [when requested to do so, for not less than seven months or more than one year unless]:

  1. (1) if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

[If in connection with 1st DWI then suspended until the defendant installs an interlock for 9-15 months after the license is restored

If in connection with a 2nd DWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration]


  • ν If in connection with a 2nd DWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration


  1. (2) if the refusal was in connection with a second offense under this section, [in which case the revocation period shall be for two years or unless], to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 


Third Refusal If the refusal was in connection with a 3rd or subsequent DWI then license is suspended for 8 years after the interlock device is installed and remains 2 to 4 years after the license is restored

All other penalties for refusal are the same – IDRC, Fines, Penalties, etc.


2nd Offense - $500 to $1000 fine, and

Interlock as above

- DDEF $100, and

- shall refer offender to IDRC.

3rd or Subsequent - $1000 fine, and


- driver's license suspension for 10 years (consecutive to any revocation imposed under

N.J.S.A. 39:4-50), and

- DDEF $100, and

- shall refer offender to IDRC.

Plus $3,000 mvc surcharges and 9 car insurance points


39 :4-50.4a  Refusal to submit to test; penalties. New penalties December 1, 2019

   2. a. The municipal court shall order any person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), refuses to submit, upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2)

   (1)   if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

   (2)   if the refusal was in connection with a second offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.); 

   (3)   if the refusal was in connection with a third or subsequent offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section. 

   The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.  In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident.  For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.  In addition to issuing a revocation, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.  

   b.   (Deleted by amendment, P.L.2019, c.248).

   L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5; 2019, c.248, s.3.




39:4-50.2 Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused.

   2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).

   (b)   A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

   (c)   In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

   (d)   The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

   (e)   No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.  The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act.  A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

 L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1.


  39:4-50.2  Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused.

 2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).

   (b)   A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

   (c)   In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

   (d)   The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

   (e)   No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.  The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act.  A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

   L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1