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

So far, we have discussed how three different arguments that deal with the motivation for drafting a Will are irrelevant in the determination of whether a Will should be probated or thrown out. In the Matter of the Estate of Kenneth Jameson features one final claim that is different. Can you be guilty of libel if you say something nasty in your Will against a disinherited beneficiary? Libel is defined in Too Much Media, LLC v. Hale as a defamatory, published statement that is false and either is injurious to another’s reputation, exposes that person to hated, contempt, and ridicule, or subjects the person to a loss of confidence held by others regarding him or her. Does this extend to comments made in a Will that is published when admitted to probate by the Surrogate’s Court?

A quick re-hash of the facts for those of you who didn’t read the earlier blogs. The decedent is Kenneth. His wife, who predeceased him, is Yvonne, and his daughter and the challenger of the Will is Stacy. Stacy went to college in 1982 and met Marc, Jewish, whom her parents disapproved of because he was Jewish. She started dating, and she was told she wasn’t welcome at her parents’ home anymore. In April 1987, both executed separate Wills, which gave their property to the surviving spouse. When both spouses died, the estate would go to a charitable organization to provide special education and rehabilitation to the mentally and physically handicapped, and if the organization did not provide those services, the estate would go to the Roman Catholic Diocese of Camden to do the same. The Will expressly disinherited Stacy, stating that the love given to her was not returned in any way and that Stacy acted with “selfishness, manipulation, cruelty…, abusiveness…, hatefulness and vindictiveness” towards her father. Marc and Stacy married, and they had three children, which Stacy’s parents never met. Stacy files a complaint seeking to have the Will thrown out of probate.

One of the defenses to libel is that there is an absolute privilege for any communication made that relates to a judicial or quasi-judicial proceeding, whether it is for litigation or in a courtroom. The statements about Stacy were published when the Will was admitted into Surrogate’s Court. The court held that the statements explained why Stacy was being disinherited, noting it to be relevant to the Surrogate’s Court proceeding. Surrogate Court is a court of limited jurisdiction, and the language of a Will is part of the probate process in admitting a Will into probate. While what was said may have been harsh, and according to Stacy, untrue, it doesn’t matter because the language of the Will is considered a part of a judicial proceeding, which the executor has a legal duty to have admitted to the Surrogate, and therefore this libel claim was struck down. The decision doesn’t mean everything said in a Will is protected, but that language explaining why a child was to be disinherited is protected by the judicial communication privilege.

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