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

In Part 1 of this series I introduced you to a case of the last will of an older deceased man. The man’s will was changed under questionable circumstances,  leaving the majority of his estate to his new live in caretaker and her family. Now we will dive in a little deeper to this story.

The will contestant alleged that the testator at the time of his death was senile and consequently lacked testamentary capacity. He further alleged that the caretaker practiced fraud and undue influence in that she was hired as a caretaker for the testator at which time he was bedridden and mentally incompetent. Testator was illiterate and the proponent practiced undue influence over him and as a result procured the execution of a will wherein she was designated the principal beneficiary. The objector to the Last Will had no knowledge as the attendant circumstances surrounding the execution of the will and put the caretaker to her proofs.

The parties agreed to settle the case prior to trial. A consent judgement was entered, which provided:

  1. The application for probate of the purported Last Will and Testament, dated 1958, be and is hereby withdrawn and the said proponent housekeeper (name withheld) hereby waives and relinquishes any and all claims of any nature, and by way of right to letters testamentary and any claims and interest in the Estate of the decedent, (name omitted).
  2. The caveator, (name omitted), was to submit for probate the will of the decedent dated February, 1950, subject to an equitable charge in favor of his three children specified in the will. All provisions relating to the children specified in the will were withdrawn from probate upon the payment of the settlement amount.
  3. The said plaintiff agreed to pay to the housekeeper the sum of Two Hundred Thousand Dollars ($200,000) upon receipt of all closing documents, which check was to be payable to her and her attorney.

The 1950 will was thereafter admitted to probate by the Surrogate of Morris County. The effect was that the family took the entire estate pursuant to the earlier will and was personally obligated to make the payments called for by the settlement.

Subsequent to the probate of the will, the plaintiff filed an inheritance tax report with the Director which disclosed a gross value of real estate and of personal property. In addition to deducting debts and expenses from that gross value, he sought to deduct the sums to be paid to the minors and the $200,000 to the housekeeper. The director, disregarded the consent judgement and the probate of the will and assessed a tax in accordance with the terms of the unprobated will.

The Director admitted that he ‘has no inherent jurisdiction over probate matters, or to determine whether a will is valid or invalid.’ He further conceded that a surrogate’s judgement of probate is not ordinarily subject to collateral impeachment by the state tax department on the ground that the probated will was allegedly invalid.

In Part 3 I finalize this case for you.

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