See related Freakonomics Blog Post.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The expansive authority of a personal representative over the estate’s property cannot be doubted. See N.J.S.A. 3B:10-30 (declaring that “[u]ntil termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate”); N.J.S.A. 3B:14-23(e)(2) (declaring that a fiduciary “shall, in the exercise of good faith and reasonable discretion, have the power . . . [w]ith respect to any property or any interest therein owned by an estate or trust, including any real property belonging to the fiduciary’s decedent at death, except where the property or any interest therein is specifically disposed of . . . [t]o sell the property . . .”).

However, N.J.S.A. 3B:14-23(e)(2) renders the representative chargeable when the terms of a transaction are not “advantageous.”

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Any objection to a commission from the beneficiary would require an examination of the sufficiency of the work performed and the worth of “the actual pains, trouble and risk” undertaken by that claimant as an administrator. N.J.S.A. 3B:18-14.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Fees ostensibly incurred on behalf of the estate are subject to reduction or rejection based upon whether those fees have benefited the estate, see, e.g., In re Bloomer, 37 N.J. Super. 85, 91 (App. Div. 1955), certif. denied, 23 N.J. 667 (1957); In re Stone, 21 N.J. Super. 117, 130-32 (Ch. Div. 1952), and, of course, are only permitted to the extent they are reasonable, see, e.g., Clapp & Black, Wills and Administration, 7A New Jersey Practice § 1547 at 97 (1984).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Where an estate is without liquid assets and its other assets are in flux or subject to what might prove to be ruinous litigation, the court’s authority to enter an interlocutory injunction restraining distributions is well-established. See Beatty v. Wunschel, 123 N.J. Eq. 192 (E. & A. 1938); In re Swetland’s Estate, 105 N.J. Eq. 603 (Prerog. Ct. 1930). Thus, a judge has authority to restrain expenditures from the estate.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

For a thorough analysis of this issue, read: New Jersey Rewrites The Rules Concerning Gifts Made By Medicaid Applicants Which Are Later Returned, published in the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Special thank you to Brian Boyle, Esq., who brought this statute to my attention.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A Note itself is prima facie evidence of a valid and enforceable loan if the borrower signed it, the note was fully funded by the lender, has not been repaid, and was not signed as a result of fraudulent inducement. See Knauer v. Levy, 115 So. 2d 776, 777 (Fla. Dist. Ct. App. 1959) (“the promissory note is itself evidence of the existence of the debt and its introduction is sufficient to establish a prima facie case.”); Jacobs v. Becks, 355 So. 2d 1241, 1243 (Fla. Dist. Ct. App.) (“[t]he presentation of the [uncancelled promissory notes], authenticated as to execution by the payor and regular on their face, establishes a prima facie case for recovery on the notes”), cert. denied. 352 So. 2d 1050 (Fla. 1978); see also Trustees System Co. of Newark v. Lisena, 106 N.J. L. 549, 551-52 (E. & A. 1930) (finding that possession of note bearing borrower’s signature established prima facie case).

An alleged promise to forgive a loan upon the lender’s death, at best, is a conditional gift (conditioned on the lener predeceasing the borrower). Any such promise may be unenforceable, as it is of a testamentary nature, and may be inconsistent with the requirements set forth in the statute of wills. See Reed v. Bonner, 19 N.J.L. 712, 713 (E. & A. 1917) (holding gifts of a testamentary nature invalid unless they are made in compliance with the formalities and requirements of the statute of wills); Bendit v. Interante, 70 N.J. Super. 116, 122 (App. Div. 1961) (“Resolution of the present controversy [ ] depends on whether the agreement in question represented a testamentary disposition of property by the decedent. If it did, compliance with the statute of wills was a prerequisite to its enforcement.”).

Courts have drawn a distinction between a promise and a contract to forgive a debt upon death. See, e.g. Eisenhardt v. Schmidt, 27 N.J. Super. 76, 89 (Ch. Div. 1953) (“The words ‘testamentary disposition’ connote or denote a gift rather than a contract. A contract does not take on a testamentary character merely because performance by one party is postponed until his death. This is not a testamentary disposition, but rather a post mortem performance.”).

However, there is no contract to forgive a debt upon death where no consideration was given. See Ross & Co. v. Walker, 32 So. 934, 937 (Fla. 1902) (holding a donee’s alleged promise to forgive a loan unenforceable unless valuable consideration is given in exchange for the promise not to collect the debt owed).

In order to constitute a gift, the following three elements must be established by clear and convincing evidence: (1) donative intent on the part of the donor; (2) actual or symbolic delivery of the subject matter of the gift; and (3) the donor must relinquish ownership and control of the “subject-matter of the gift, at least to the extent practicable or possible, considering the nature of the thing to be given.” Farris v. Farris, 7 N.J 487, 500–01 (1951); see also Canova v. Cla. Nat’l Bank, 60 So. 2d 627, 629 (Fla. 1952) (the elements of a gift must be established by clear and convincing evidence); Mills v. Mills, 845 So. 2d. 230, 233 (Fla. Dist. Ct. App. 2003) (setting forth the elements of a gift under Florida law); Czoch v. Freeman, 317 N.J. Super. 273, 283 (App. Div.) (elements of a gift must be established by “clear, cogent, and persuasive proof” and when a party “seeks to assert a claim or affirmative defense based on the oral testimony of a promise, statement or act of a decedent must prove such testimony by ‘clear and convincing proof.’”) (internal citations omitted), cert. denied 161 N.J.149 (1999).

“The burden of going forward with the evidence by offering proof of a gift shifts to the defendant once the plaintiff has produced evidence sufficient to make out a prima facie case entitling him to the money or property.” 39 Am. Jur. 2d Proof of Facts § 733.

See related Blog Post, published in the New Jersey Family Law blog.

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See related Blog Post-1 and Blog Post-2, both published on the Law Office of Donald D. Vanarelli Blog.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

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In Jennings v. Cutler, 288 N.J. Super. 553 (App. Div. 1996), the court stated that “[t]he three elements required to establish an inter vivos gift are (1) a donative intent on the part of the donor; (2) an actual or symbolic delivery of the subject matter of the gift; and (3) an absolute and irrevocable surrender by the donor of ownership and dominion over the subject matter of the gift, at least to the extent practicable or possible, considering the nature of the thing to be given.” Id. at 562. These three factors are “interrelated” and “[t]o constitute an inter vivos gift, not only must the donor have a clear intention to give a gift, but the gift must be completed.” Ibid.

The recordation of a document is sufficient to constitute its delivery for purposes of establishing a gift, Fischer v. Gerndt, 94 N.J. Eq. 53, 55 (Ch. 1922). However, the law does not require that a deed be recorded to be an effective gift. See H.K. v. Dep’t of Human Servs., 184 N.J. 367, 382 (2005) (noting that recording is not a necessary prerequisite to pass title). If a deed is physically delivered without the requisite intent to immediately convey title, then the requirement of delivery has not been met. Ibid.

A parent’s failure to record the deed given to the children was evidence of his lack of donative intent and evidence of his failure to relinquish dominion and control. Also, the parent’s statement to his son not to do anything with the deed until after his death was further evidence that the gift was incomplete. Also, the fact that the sons never took dominion and control of the premises or paid any of its expenses is consistent with an incomplete gift.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

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