$397,309 Attorney Fee Award To Estate Was Appropriate Where Second Wife’s Fraudulently Created Documents Expanded Her Beneficial Interest In the Estate.

The decedent married his second wife in 2002, five years before his death. He had three children from a prior marriage. During the decedent’s lifetime, he executed a will naming his daughter as his executor. Because he had made contributions to the  marital home, he also asked an attorney to prepare a deed under which his second wife would transfer their marital home to the decedent and herself as tenants in common. Less than a month before the decedent’s death, the deed was executed and recorded. On September 26, the decedent entered hospice care after doctors told him there were no further treatments for his kidney cancer. On September 28, he executed two codicils to his will, one stating that he wanted his wife to have all of his personal property and another stating that he wanted his wife to have all personal accounts and items in their home. On September 29, the wife drove the decedent to a bank and asked a bank employee to come to the car in the parking lot to notarize a deed granting the home to the couple as joint tenants with rights of survivorship.   The decedent died on October 2. After five years of litigation, the probate court found that the decedent was in a weakened state when he executed the last deed and the two codicils. The judge found suspicious circumstances and held that the wife had fraudulently executed the documents. As such, the judge order her to pay damages, plus $397,309 in attorney fees and costs to the estate. On appeal, the court affirmed, finding that the probate court was to be granted great deference. There was a confidential relationship between the decedent and his wife and the court would not second-guess the probate court’s conclusions that the wife had gained an advantage due to that confidence. The court found that fees were appropriately awarded when a person commits fraud which results in the development or modification of estate documents that create or expand the fiduciary’s beneficial interest in the estate.  In re Estate of Folcher, No. A-1790-12T4, 2014 N.J. Super. Unpub. LEXIS 1340 (App. Div. Jun. 10, 2014).

 

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