Undue Influence to challenge a Will or Power of Attorney

New: 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. See . ___ N.J. Super. ___, ___ (2!"# (slip op. at !"#. 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.
$%state of &stlund v. &stlund, "'! N.J. Super. "', (! (App. )iv. 2*#.+
Although perhaps difficult to define, the concept ,encompasses all relationships
-whether legal, natural or conventional in their origin, in which confidence is
naturally inspired, or, in fact, reasonably e.ists./0 1ascale v. 1ascale, !!" N.J. 2,
"( (!'22# (internal citation omitted#. ,And while family ties alone may not 3ualify,
parent4child relationships have been found to be among the most typical of
confidential relationships., )e5ran6, supra, slip op. at !" (citing &stlund, supra,
"'!N.J. Super. at (!#.
7n the conte.t of inter vivos gifts, ,a presumption of undue influence arises when
the contestant proves that the donee dominated the will of the donor or when a
confidential relationship e.ists between the donor and done., 1ascale, supra,
!!" N.J. at " (internal citations omitted#. ,8here parties en9oy a relationship in
which confidence is naturally inspired or reasonably e.ists, the person who has
gained an advantage due to that confidence has the burden of proving that no
undue influence was used to gain that advantage,, 7n re %state of 1enna,"22 N.J.
Super. (!*, (2" (App. )iv. !'''#, and ,the donee has the burden of showing by
clear and convincing evidence not only that -no deception was practiced therein,
no undue influence used, and that all was fair, open and voluntary, but that it was
well understood.-, 7n re %state of :osery, "(' N.J. Super. ;!;, ;2242" (App. )iv.
22# (citing 7n re )odge, ; N.J. !'2, 22* (!'<*##.
=he person receiving gifts and greater benefit had a burden to show no
deception was practiced and that all of the transactions were fair, open and
voluntary, and that they were well understood.
One of the major cases dealing with undue influence was Haynes v. First National
State Bank of New Jersey, ! N.J. "#$, !%&!# '"("). Here the Su*reme +ourt held that the
,urden of *roof esta,lishing undue influence shifts to the *ro*onent when a will ,enefits a
*erson who stood in a confidential relationshi* to the decedent and there are sus*icious
circumstances, which need e-*lanation. .he sus*icious circumstances need only ,e slight.
/d. at "!#. 0oreover, when the evidence is almost entirely in the *ossession of one *arty
and the evidence *oints to the *ro*onent as asserting undue influence, a clear and
convincing standard may ,e a**lied rather than the normal ,urden of *roof of
*re*onderance of the evidence. /d. at "$.
Furthermore, the Haynes analysis was e-tended to situations in which there is a
transfer of *ro*erty where the ,eneficiary of the *ro*erty and an attorney is on one side and
the donor on the other. See Oachs v. Stanton, 12 N.J. Su*er. 3!, 3$ '4**. 5iv. "((%).
.he court in Oachs determined that under circumstances such as these the donee
,ears the ,urden of *roof to esta,lish the validity of the gift, even in situations in which the
donee did not dominate the decedent6s will. /d. at 3%. .his rule was esta,lished to *rotect a
donor from making a decision induced ,y a confidential relationshi* the donee *ossesses
with the donor. /d. 4gain, the ,urden is a clear and convincing standard. /d.
.he Su*reme +ourt in 7ascale v. 7ascale, ""$ N.J. 12, $" '"((), stated that when a
donor makes a gift to a donee that he8she is de*endent u*on, a *resum*tion arises that the
donor did not understand the conse9uences of his8her act. /n these situations the donee
must demonstrate that the donor had disinterested and com*etent counsel. /d. :ikewise,
undue influence is conclusive, when a mentally or *hysically weakened donor makes a gift
without advice or a means of su**ort, to a donee u*on whom he8she de*ends. /d.
4 confidential relationshi* can ,e found to e-ist when one is certain that the *arties
dealt on une9ual terms. /n re Stroming6s ;ill, "1 N.J. Su*er. 1"!, 113 '"(%"). .he
a**ro*riate in9uiry is if a confidential relationshi* e-isted, did the *arties deal on terms and
conditions of e9uality< Blake v. Brennan, " N.J. Su*er. 33#, 3%$ '"(3).
Sus*icious circumstances are not re9uired to create a *resum*tion of undue
influence with regard to inter vivos gifts and the *resum*tion of undue influence is more
easily raised in an inter vivos transfer. See 7ascale, su*ra, ""$ N.J. at $"= Bronson v.
Bronson, 1" N.J. Su*er. $(, $(3 '4**. 5iv. "(!).
>enerally, an adult is *resumed to ,e com*etent to make an inter vivos gift. See
+onners v. 0ur*hy, "22 N.J. ?9. 12, 11 '?. @ 4. "(1#)= 7ascale v. 7ascale, ""$ N.J. 12,
1( '"(). However, when a *arty alleges undue influence with regard to an inter vivos gift,
the contesting *arty must *rove undue influence e-isted or that a *resum*tion of undue
influence should arise. 7ascale, su*ra, ""$ N.J. at $2.
4 *resum*tion of undue influence arises when a confidential relationshi* e-ists
,etween the donor and donee or where the contestant *roves the donee dominated the ;ill
of the donor. /d.= see also SeylaA v. Bennett, % N.J. "#, "!1 '"(%2)= /n re 5odge, %2 N.J.
"(1, 11! '"(#!)= 0ott v. 0ott, 3( N.J. ?9. "(1, "( '+h. "(")= Oachs v. Stanton, 12 N.J.
Su*er. 3! '4**. 5iv. "((%) 'holding that where a confidential relationshi* e-isted and that
the donor did not rely u*on the donee, a shifting of the ,urden was still a**ro*riate)= /n re
Neuman6s ?state, "$$ N.J. ?9. %$1, %$3&$% '?. @ 4. "(3$) 'stating in a will conte-t BSuch
,urden does not shift merely ,ecause of the e-istence of a confidential relationshi*, without
more, as in the matter of gifts inter vivos.C)
.he /n re 5odge court e-*lained why a *resum*tion of undue influence arises in a
confidential relationshi* and statedD B/n the a**lication of this rule it is not necessary that the
donee occu*y such a dominant *osition toward the donor as to create an inference that the
donor was una,le to assert his will in o**osition to that of the donee.C /n Ee 5odge, %2 N.J.
"(1 '"(#!). .he court referenced a much earlier case in e-*laining the rule6s a**licationD
F/ts *ur*ose is not so much to afford *rotection to the donor against the
conse9uences of undue influence e-ercised over him ,y the donee, as it is to afford him
*rotection against the conse9uences voluntary action on his *art induced ,y the e-istence
of the relationshi* ,etween them, the effect of which u*on his own interests he may only
*artially understand or a**reciate.F /n re 5odge, su*ra, %2 N.J. at 11 citing Slack v. Eees,
## N.J. ?9. 33!, 33( '?. @ 4. "(23).
/n sum, once it is *roven that a confidential relationshi* e-ists the ,urden shifts to the
donee to show ,y clear and convincing evidence that no undue influence was used.
4lthough the case law indicates sus*icious circumstances need not ,e shown the donee
must show all was fair, o*en and voluntary, no dece*tion was *racticed and that the
transaction was well understood. 7ascale, su*ra, ""$ N.J. at $"= see also /n re 5odge,
su*ra, %2 N.J. at 11!= SeylaA, su*ra, % N.J. at "!$. Furthermore, confidential relationshi*s
arise in all ty*es of relationshi*s Bwhether legal, natural or conventional in their origin, in
which confidence is naturally ins*ired, or, in fact, reasona,ly e-ists.C /n re Ful*er6s ?state,
(( N.J. ?9. 1(1, $"3 '7rerog. +t. "(1#)= see 7ascale, su*ra, ""$ N.J. at $3. /t a**ears
confidential relationshi*s e-ist in all cases in whichD
F.he relations ,etween the GcontractingH *arties a**ear to ,e of such a character as
to render it certain that they do not deal on terms of e9uality, ,ut that either on the one side
from su*erior knowledge of the matter derived from a fiduciary relation, or from over&
mastering influence= or on the other from weakness, de*endence or trust justifia,ly re*osed,
unfair advantage is rendered *ro,a,le.F 7ascale, su*ra, ""$ N.J. at $3, 9uoting /n re Ful*er,
su*ra, (( N.J. ?9. at $"3= see also /n re 5odge, su*ra, %2 N.J. at 11.
/n determining whether the 5efendant was the dominant *erson in the relationshi*
there is no clear&cut rule and instead the court must look to the *articular circumstances of
the matter. /n re Ful*er, su*ra, (( N.J. ?9. at $"%= >iaco,,i v. 4nselmi, " N.J. Su*er. #22,
#"# '+h. 5iv. "(%1). /n Ful*er the court determined that a confidential relationshi* e-isted in
a father&son relationshi* in which the father was advanced in age, weak and *hysically
de*ended u*on the son. 0oreover, since the father sought the son6s assistance on ,usiness
matters, lived with the son during the winter months and gave the son joint and several
*ower over his checking account an actual re*ose of trust and confidence in the son was
demonstrated. /n re Ful*er, su*ra, (( N.J. ?9. at $".
/n the >iaco,,i case, su*ra, a confidential relationshi* was determined to e-ist
,etween a mother and daughter, even though the mother did not suffer from mental or
*hysical infirmity. .here the mother was found to ,e alert, active, and somewhat
inde*endent. However, she turned to the daughter for small issues and *ro,lems when they
occurred. >iaco,,i, su*ra, " N.J. Su*er. at #"!.
.herefore, the ,urden can shift to 5efendant to *rove ,y clear and convincing
evidence the transaction was not unduly influenced. Furthermore, where a donor makes an
Bim*rovidentC gift to the donee u*on whom she de*ends that stri*s the donor of all or
virtually all their assets, as here, a *resum*tion arises that the donor did not understand the
conse9uences of their act. 7ascale, su*ra, ""$ N.J. at $", citing Iander,ach v. Iollinger, "
N.J. 3", 3( '"(3(). Jnder those circumstances the donee must esta,lish that the donor
had the advice of com*etent and disinterested counsel. /d. citing Iander,ack, su*ra, "
N.J .at 3&(.
Similarly, when a mentally or *hysically weakened donor makes a gift to a donee
whom the donor is de*endent u*on, without advice, and the gift leaves the donee without
ade9uate means of su**ort, a conclusive *resum*tion of undue influence arises. /d. citing
SeylaA, su*ra, % N.J. at "!$. However, when a donor is not de*endent u*on the donee
Binde*endent advice is not a *rere9uisite to the validity of an im*rovident gift even though
the relationshi* ,etween the *arties is one of trust and confidence.C /d. citing SeylaA, su*ra,
% N.J. at "!$.

4lthough sus*icious circumstances are not re9uired to ,e esta,lished in an inter
vivos transfer for a *resum*tion of undue influence to e-ist, there,y shifting the ,urden of
*roof, 7laintiff has raised the issue. 7ascale, su*ra, ""$ N.J. at $2.
If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is enied Ad!ission
to Pro"ate#
.he testatri-Ks ;ill was *ro*erly rejected as the *roduct of undue influence ,ecause the
*ro*onent and the testatri- had a confidential relationshi* and ,ecause there were
Fsus*icious circumstancesF surrounding the e-ecution of the will.
/n Ee 7ro,ate of the :ast ;ill and .estament of +atelli $#" NJ Su*er. 3! '4**. 5iv. 122$)
/n the +atelli case, .homas E. Iillone was named ,y his elderly aunt, 4nna Iillone
+atelli, as the e-ecutor in a will and as the trustee under a living trust, which she e-ecuted on
January (, "((#. He a**eals from the decision of the +hancery 5ivision which refused to
admit that "((# will to *ro,ate, which named his cousin, >eorge Iillone, as the 4dministrator
+...4. of +atelliKs estate, which ordered him to restore assets to the estate, which awarded
counsel fees and which dismissed a related com*laint that he had filed in his effort to enforce
certain *rovisions of the "((# trust.
.he decision of the trial court was made following two days of testimony and the
consideration ,y the court of de*osition testimony given ,y witnesses, including .homas
Iillone, who could not a**ear in New Jersey. /n that decision, the court first held that, as a
matter of *u,lic *olicy, the will could not ,e admitted to *ro,ate ,ecause at the time of the
e-ecution of the "((# will, 4nna +atelli had ,ecome ,lind and the only *erson who could
verify that the contents of the documents had ,een read to her so that she knew what she
was signing was .homas, who the dis*uted documents made her sole heir. 4s an alternate
ground, the judge analyAed the testimony and the evidence in the nature of an a**lication for
a directed verdict at the close of the *laintiffKs case and determined that .homas Iillone
could not *revail on the merits. Because we affirm the decision of the court ,ased u*on the
alternate ground, we do not address the courtKs *u,lic *olicy rationale.
Iiewed in the light most favora,le to .homas Iillone, the record discloses the following
facts. .he testator, 4nna +atelli, was a widow who had no children and who lived alone. She
had a num,er of nieces and ne*hews, including .homas Iillone and >eorge Iillone. She
also had a ,rother, Eo,ert, who died in Florida in "((3. Eo,ert had named .homas, his
ne*hew, as the e-ecutor and *rinci*al ,eneficiary of his estate. .homas, who was a self&
em*loyed long distance truck driver living in 4riAona, had not had much contact with 4nna
+atelli, ,ut tele*honed to tell her of her ,rotherKs death. /n that conversation, +atelli had
asked him to come and visit her when he was ne-t in New Jersey and he thereafter did so.
?arly in "((3, while .homas was visiting her at her home, then in S*ringfield, +atelli
asked him to drive her to her lawyerKs office in 0a*lewood, which he did. He learned that day
that +atelli had named him as her alternate *ower of attorney in the event that her long&time
*hysician and confidante, 5r. +o**ola, was una,le to serve. ;hile he was not aware of it at
the time, she had gone to the lawyerKs office that day to e-ecute 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 ,eneficiaries. :ater that year, +atelli suffered a significant stroke which left her
*artially *aralyAed and with limited *owers of s*eech and sight. She was moved ,y 5r.
+o**ola to a nursing home, and thereafter to the >arden .errace Nursing Home where she
remained until her death. .homas visited her at the nursing home from time to time when he
was in New Jersey. Shortly ,efore .hanksgiving "((%, 5r. +o**ola tele*honed .homas and
told him that +atelli wanted to make him her sole heir. 5r. +o**ola died two or three days
later.
Following 5r. +o**olaKs death, .homas invoked the *ower of attorney to make
L"2,222 gifts to himself, his wife and his daughter. He ne-t received from 5r. +o**olaKs son
all of the *a*ers relating to +atelliKs assets. ;hile .homas then knew that the designation of
him as the sole heir was a de*arture from her earlier will, he did not discuss this a**arent
change of *lans with +atelli. Eather, he immediately consulted an attorney in 4riAona who
*re*ared a living trust, which named .homas as the trustee, and a *our&over will which
named .homas as the e-ecutor and sole heir. .he 4riAona attorney gave the documents to
.homas along with a letter which instructed him to have the documents reviewed ,y a New
Jersey attorney and which suggested that 4nna ,e re*resented ,y inde*endent counsel.
.homas then came to New Jersey, arriving on January #, "((#. ;hile .homas knew that
+atelli had ,een re*resented in the *ast ,y the lawyer in 0a*lewood, he did not contact him
and did not consult with any other New Jersey lawyer. /nstead, he went directly to the nursing
home and visited with +atelli.
Over the course of the ne-t three days, while she remained in her ,ed and doAed
on and off, he read the documents to her. .homas has a high school education and
concedes that he would not have ,een a,le to e-*lain or inter*ret any of the language of the
trust or the will to +atelli. He was aware that the trust and the will together would ena,le him
to avoid *ro,ate, ,ut he did not understand why that might ,e advantageous. 4t no time did
he suggest that +atelli consult with an attorney or offer to contact her New Jersey lawyer for
her.
4fter three days, .homas made arrangements with the administrator of the nursing
home to e-ecute the trust and the will. .he administrator served as a notary and two nurses
o,served +atelli *lace an FMF on the line .homas indicated. Shortly after the e-ecution,
.homas gave u* his truck driving jo,, em*loyed himself as the full&time manager of +atelliKs
assets and undertook to gain control of +atelliKs interest in ?-celsior Eealty :td. '?-celsior), a
family real estate venture, through the trust instrument. 7rior to +atelliKs death, .homasK
efforts to gain control of her interest in ?-celsior consisted of corres*ondence with his cousin
>eorge Iillone who was the >eneral 7artner of that venture. >eorge Iillone refused to
acknowledge the validity of the January (, "((# trust agreement and refused to turn control
of +atelliKs interest in ?-celsior over to .homas. He continued to refuse after +atelliKs death
on July %, "((!. 4s a result, in 0arch "(((, .homas instituted litigation, in his ca*acity as the
e-ecutor of +atelliKs estate and as her heir, against >eorge Iillone and ?-celsior to force a
transfer of +atelliKs interest to him. .hat com*laint was consolidated with the action filed
su,se9uently ,y .homas in the +hancery 5ivision, 7ro,ate 7art seeking to have the
dis*uted will admitted to *ro,ate.
.he judge elected to first receive evidence relating to whether the "((# will should ,e
admitted to *ro,ate. 4t the close of the evidence offered in favor of the admission of the will,
the trial court held, first, that .homas Iillone had failed to demonstrate that +atelli knew the
contents of the documents that she had signed. Eelying on Harris v. IanderveerKs ?-ecutor,
1" N.J. ?9. %#", %#$ '?. @ 4. "!2), Hildreth v. 0arshall, %" N.J. ?9. 13", 1%2 '7rerog. +t.
"($) and 5ay v. 5ay, $ N.J. ?9. %3(, %%$&%% '7rerog. +t. "$"), the judge rejected the will.
;hile each of these decisions includes a discussion of the effect of visual im*airment on the
knowing e-ecution of a will, each of them arose in the conte-t of a dis*ute ,ased on
allegations of undue influence.
.hus, while each of these *recedents rejected a *roffered will e-ecuted ,y a
testator with a significant visual or other im*airment, none re9uires *roof of knowing
e-ecution ,eyond that s*ecified ,y the statute. N.J.S.4. $BD$&1= N.J.S.4. $BD$&3. .he judge,
however, reasoned that although the will had ,een e-ecuted in accordance with the statutory
formalities, *u,lic *olicy demands *roof ,eyond com*liance with the formalities of e-ecution
if the testator can no longer see. He held that the will was invalid ,ecause there was no
evidence from anyone other than the sole ,eneficiary that the will had ,een read to +atelli
and that she knew what she was signing. He therefore created an additional re9uirement for
*ro,ate of a will e-ecuted ,y a visually im*aired *erson, citing *u,lic *olicy. ;e a**reciate
the trial judgeKs concern that a testatri- with a severe visual im*airment is ordinarily una,le,
without the intervention of a neutral *erson, to determine if the will as drafted accurately
memorialiAes her testamentary instructions. .he same, of course, is true of a testator who
cannot read ,y reason of illiteracy. But whether the statutory *rovisions for the witnessing
and e-ecution of the wills of such testators should ,e augmented to re9uire that the *re&
e-ecution reading of the will to the testator ,e ,y a disinterested *erson is, in our view, a
matter within the *rovince of the :egislature.
.he court held ;e are satisfied, at least in this case, that we need not further consider
that issue ,ecause, as the judge found, this record s*eaks so clearly of undue influence. .he
trial judge addressed the alternate ground of undue influence using the standard of a directed
verdict at the close of *laintiffKs *roofs. E. 3D$!&1',). He found that there was a confidential
relationshi* ,etween the decedent and the ,eneficiary, that there were sus*icious
circumstances surrounding the e-ecution, that undue influence was therefore *resumed, that
the ,urden to overcome the *resum*tion therefore shifted to .homas and that the record
,efore the court made it im*ossi,le for him to carry that ,urden. He therefore refused to
admit the will to *ro,ate, dismissed the com*laint against >eorge Iillone and ?-celsior,
admitted +atelliKs "((3 will to *ro,ate, a**ointed >eorge Iillone as the 4dministrator +...4.,
directed .homas to restore assets to the estate and a**roved fees and commissions. ;e
agree with the judgeKs alternate analysis of the *ro,ate dis*ute and we affirm on that ground.
Iiewed in terms of undue influence, there can ,e no dou,t a,out the issues ,efore us.
.he judge identified several factors that su**orted his analysis of undue influence, including
the fact that .homas retained his own attorney to *re*are the documents, that he did so
,ased only on the conversation with 5r. +o**ola and without any consultation with +atelli
herself, that the documents were markedly different from +atelliKs *rior will, that +atelli was
very de,ilitated and vulnera,le, that the effect of the documents was an immediate vesting of
control of all assets in .homas through the inter vivos trust document, and that .homas
immediately u*on the death of 5r. +o**ola left his em*loyment and ,y means of the *ower
of attorney ,egan to *ay himself a commission and dis*ensed su,stantial gifts to himself and
his immediate family, which ,es*oke self&dealing even *rior to the time of the e-ecution of
the dis*uted documents.
.he court heldD ;e concur with the judgeKs analysis of the effect of these facts.
First, +atelli was clearly not well. .he nursing administrator who saw her daily conceded that,
while she had made *rogress in recovering from her stroke, her level of functioning was
seriously diminished. Her short&term memory was significantly im*aired. Her vision had
deteriorated su,stantially. She re9uired total care ,y the staff at the nursing home, needing
daily assistance with feeding, ,athing, and other ,asic needs. 5uring the three days *rior to
the e-ecution of the document, she did not leave her room, ,ut remained in ,ed, doAing from
time to time and ,arely communicating with anyone. ;hile she was undou,tedly fond of
.homas, who was virtually her only visitor after the death of 5r. +o**ola, she was es*ecially
vulnera,le to his influence.
0oreover, .homas acted in a manner, which made his intentions clear. ?ven
acce*ting as true his testimony that he learned from 5r. +o**ola that +atelli intended to
make him her sole heir, his ,ehavior *roves that he acted so as to over,ear her will. He
made no effort to discuss +atelliKs intentions with her *rior to acting for his unilateral ,enefit.
He knew that +atelli had an attorney in New Jersey who had *re*ared at least one earlier
will, ,ut he de*rived +atelli of the o**ortunity to consult with him. He did so in s*ite of the
urging of his *ersonal attorney from 4riAona to have the documents reviewed ,y New Jersey
counsel and to give +atelli the ,enefit of inde*endent legal advice. He knew as well that the
"((3 will left significant assets to the two churches and a hos*ital, left numerous s*ecific
,e9uests to friends and to a few family mem,ers, and included him only as one of the
residuary ,eneficiaries. Nonetheless, he made no effort to discuss with +atelli why all were to
,e rejected in favor of him alone.
Nor did he sim*ly carry out the instruction that he ,e made her sole heir. /nstead,
he used his own attorney to secure immediate control of her assets. He knew that +atelli had
not *reviously utiliAed a trust and he knew from his own lawyer that a living trust with a *our&
over will would give him control ,efore +atelli died. /n fact as soon as he had the a,ility to
e-ercise any control through the *ower of attorney, he gave L$2,222 in gifts to himself, his
wife and his daughter, an act well in e-cess of any *rior e-*ression of generosity ,y +atelli
and not one she authoriAed. Shortly thereafter, he em,arked on a new career, hiring himself
to ,e the full time manager of her assets, in s*ite of his lack of any relevant training or
e-*erience. .hose acts are the ,ehavior not of one with +atelliKs interests at heart, ,ut of one
,ent on his own enrichment at her e-*ense.
.he law governing undue influence is well esta,lished. ;hile we generally *resume
that the testator is of sound mind and com*etent to e-ecute a will, >ellert v. :ivingston, % N.J.
#%, !" '"(%2), even a will which on its face a**ears to have ,een validly e-ecuted can ,e
overturned u*on a demonstration of undue influence. Haynes v. First NatKl State Bank, !
N.J. "#$, "!%&!# '"("). Similarly, an inter vivos transfer, as was this trust, is e9ually
governed ,y the undue influence analysis. /n re 5odge, %2 N.J. "(1, 11!&1( '"(#!)= see
7ascale v. 7ascale, ""$ N.J. 12, 1(&$" '"().
Jndue influence is Fdefined as Kmental, moral or *hysicalK e-ertion which has
destroyed the Kfree agency of a testatorK ,y *reventing the testator Kfrom following the dictates
of his own mind and will and acce*ting instead the domination and influence of another.KF
Haynes v. First NatKl State Bank, su*ra, ! N.J. at "!# '9uoting /n re Neuman, "$$ N.J. ?9.
%$1, %$3 '?. @ 4. "(3$)). ;here the will ,enefits one who enjoyed a confidential relationshi*
with the testator, and where there are sus*icious circumstances surrounding the will, the law
*resumes undue influence and the ,urden is u*on the *ro*onent of the will to dis*rove the
*resum*tion. /n re EittenhouseKs ;ill, "( N.J. $!#, $!&!( '"(%%).
.he court heldD .he confidential relationshi* ,etween .homas and +atelli is ,oth
*lain and conceded. See Haynes v. First NatKl State Bank, su*ra, ! N.J. at "!#= /n re ?state
of Ho**er, ( N.J. 12, 11 '"(%1). .he sus*icious circumstances surrounding the will need
only ,e FslightF to shift the ,urden of *roof to the *ro*onent to overcome them. See /n re
?state of :ehner, !2 N.J. 3$3, 3$# '"(!#)= /n re BlakeKs ;ill, 1" N.J. %2, %%&%# '"(%#).Once
the ,urden has shifted, the will *ro*onent must overcome that *resum*tion ,y a
*re*onderance of the evidence. Haynes v. First NatKl State Bank, su*ra, ! N.J. at "!!&!= /n
re ?state of ;eeks, 1( N.J. Su*er. %$$, %$&$( '4**. 5iv. "(%3)= see /n re ?state of +hurik,
"#% N.J. Su*er. ", % '4**. 5iv. "(!), affKd o.,., ! N.J. %#$ '"(!(). See also 7ascale v.
7ascale, su*ra, ""$ N.J. at $" 'holding that donee of inter vivos gift ,ears ,urden of *roof ,y
clear and convincing evidence).
.he court held .he record ,efore us discloses no evidence ,y which .homas could
meet this ,urden. On the contrary, the record is overwhelmingly su**ortive of the finding of
undue influence. .he com,ination of the confidential relationshi* and the sus*icious
circumstances was more than sufficient to shift the ,urden to .homas. .he a,sence of any
evidence tending to negate the *resum*tion and the a,undant evidence of self&dealing ,y
.homas su**ort the conclusion that the testatorKs will was over,orne. .he trial judge, having
heard and considered the evidence, a**ro*riately found that the ,urden that had shifted to
.homas was one that he was una,le to carry. 4ffirmed.
$ENNET% &E'CA((EN ) A**+CIATE*, PC
ATT+'NE, AT -AW
12%$ ;ood,ridge 4ve.
?dison, NJ 2"!
'7hone) !$1&%!1&2%22
'Fa-) !$1&%!1&22$2

T'IA- AN -ITI.ATI+N E/PE'IENCE
/n his *rivate *ractice, he has devoted a su,stantial *ortion of his *rofessional time to
the *re*aration and trial of litigated matters. He a**ears in +ourts throughout New Jersey
several times each week on many *ersonal injury matters, +riminal and 0unici*al8traffic
+ourt trials, 7ro,ate hearings, and contested administrative law hearings.
0r. Iercammen served as the 7rosecutor for the .ownshi* of +ran,ury, 0iddlese-
+ounty and was involved in trials on a weekly ,asis. He also argued all *re&trial motions
and *ost&trial a**lications on ,ehalf of the State of New Jersey.
He has also served as a S*ecial 4cting 7rosecutor in ;ood,ridge, 7erth 4m,oy,
Hightstown, +arteret, ?ast Brunswick, James,urg, South Brunswick, South Eiver and
South 7lainfield for conflict cases. Since "((, he has *ersonally handled hundreds of
criminal and motor vehicle matters as a 7rosecutor and now as defense counsel and has
had su,stantial success.
7reviously, 0r. Iercammen was 7u,lic 5efender for the .ownshi* of ?dison and
Borough of 0etuchen and a 5esignated +ounsel for the 0iddlese- +ounty 7u,lic
5efenderKs Office. He re*resented indigent individuals facing conse9uences of magnitude.
He was in +ourt trying cases and making motions in difficult criminal and 5;/ matters.
?very case he *ersonally handled and *re*ared.
His resume sets forth the numerous ,ar associations and activities which
demonstrate his commitment to the legal *rofession and *roviding 9uality re*resentation to
clients.
Since "(%, his *rimary concentration has ,een on litigation matters. 0r.
Iercammen gained other legal e-*eriences as the +onfidential :aw +lerk to the +ourt of
4**eals of 0aryland 'Su*reme +ourt) with the 5elaware +ounty, 74 5istrict 4ttorney Office
handling 7ro,a,le +ause Hearings, 0iddlese- +ounty 7ro,ation 5e*artment as a
7ro,ation Officer, and an ?-ecutive 4ssistant to Scranton 5istrict 0agistrate, .homas Hart,
in Scranton, 74.