Pernicious, Perfidious, Insidious = Tortious

Profession:Foley & Lardner

Reproduced with permission of Trusts & Estates magazine (March 2007).

Although other states have increasingly recognized the tort of intentional interference with an inheritance, New Jersey has been slow to do so. Many practitioners prefer to bring a tort action rather than a straight undue influence claim because of the availability of punitive damages, often in the form of attorneys' fees. But a New Jersey Superior Court seems to have found a new approach. It has allowed the shifting of attorneys' fees in an undue influence case, Blumeling v. Stalker, 2006 WL 721837 (N.J. Super. March 20, 2006.)

Gladys Blumeling owned a home in Bergenfield, N.J., from 1939 until January of 2004. Her grandson, Jon Stalker, lived with her for a time. In January of 2004, Gladys, then 91-years-old, deeded her property to Jon and executed a will naming him as executor and primary beneficiary. She also signed a power of attorney designating Jon as her agent. Shortly thereafter, Jon died.

In July of 2004, Gladys was judicially declared incapacitated. Her son, Charles, was appointed as guardian of her person and estate. Charles brought legal action against Norman Stalker, Jon's father, as administrator of Jon's estate. Charles' complaint alleged that Jon had committed undue influence upon Gladys and improperly induced her to execute the deed and will. Charles' complaint sought compensatory and punitive damages as well as attorneys' fees. Charles wanted the house given back to Gladys.

Norman defended against the action, claiming that Gladys had deeded the property to Jon and included him in her will because of the excellent care and dedication he'd shown her. One of the items introduced at the trial was a videotape of Gladys' execution of the documents. But apparently that tape was damning.

The lower court declared that the tape showed Jon to be the "impresario" of a "charade" to deprive Gladys of her primary asset (her home) and that Gladys was not competent to execute the deed or will. Accordingly, the trial court invalidated both deed and will, having found that they did result from undue influence.

On July 29, 2005, Charles filed a complaint seeking attorneys' fees and costs incurred to prosecute the guardianship action and to set aside the deed and will. Norman requested summary judgment. Charles filed a cross motion for summary judgment.

The court's analysis of the attorneys' fees issue began by stating the general rule that New Jersey has a strong public policy against...

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