Estate Planning Lessons From New Jersey Supreme Court Will Dispute

Estate Planning Lessons From New Jersey Supreme Court Will Dispute

by | Sep 1, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Legal Bulletin, NJ Supreme Court, Probate

Families often assume that a Last Will and Testament clearly reflects a loved one's wishes and that those wishes will be carried out without controversy. Unfortunately, that is not always the case. A recent decision by the New Jersey Supreme Court, Christakos v. Boyadjis, 262 N.J. 447 (2026), highlights how misunderstandings, outdated estate plans, and last-minute revisions can lead to years of probate litigation and significant expense.

The case involved two brothers, Peter and Nicholas Christakos, who had signed wills in 2003 providing that their estates would pass to one another and, ultimately, to certain family members. More than a decade later, they consulted an attorney about updating their estate plans. During that process, the attorney incorrectly interpreted provisions of the existing Wills and later drafted new Wills that did not fully accomplish what the brothers intended. After both brothers died, multiple probate disputes followed, eventually leading to a legal malpractice lawsuit against the drafting attorney.

The New Jersey Supreme Court was asked to decide whether a family member who was not a client of the attorney could sue the attorney for malpractice. The Court held that, under the circumstances presented, she could not. In adopting Section 51 of the Restatement (Third) of the Law Governing Lawyers, the Court emphasized that attorneys generally owe duties to their clients, not to every person who might have expected to inherit from an estate. Because there was insufficient evidence that the decedents intended the claimant to be a beneficiary under the later wills, the malpractice claim could not proceed.

Although the decision focuses on attorney liability, the more important takeaway for New Jersey families is the value of careful and proactive estate planning.

One lesson is the importance of regularly reviewing an estate plan. Many people create a Will and never look at it again. Over time, however, family relationships change, beneficiaries pass away, financial circumstances evolve, and personal priorities shift. An estate plan that made perfect sense twenty years ago may no longer reflect a person's wishes today. Regular reviews help ensure that documents remain consistent with current goals and avoid surprises after death. For more information about creating and updating a Will, see my article on Last Wills and Testaments in New Jersey.

The case also demonstrates the importance of clearly expressing testamentary intent (what the person signing the Will intends). Much of the litigation centered on determining what the brothers actually wanted to happen to their property. When estate planning documents leave room for interpretation, surviving family members may spend years fighting over those questions in court. Clear drafting, thorough communication with counsel, and careful documentation of significant decisions can substantially reduce the likelihood of future disputes.

Another important issue is planning before health concerns become urgent. Questions regarding diminished capacity frequently arise when Wills or estate planning documents are executed later in life. While most older adults retain the ability to make valid estate planning decisions, waiting until a medical crisis occurs can increase the risk of challenges after death. Addressing estate planning needs early is often one of the most effective ways to protect both the plan and the family members who may later be called upon to defend it.

The decision is also a reminder that family members should avoid making assumptions about inheritance rights. A relative may have been included in an earlier Will but omitted from a later one. Beneficiary designations, trusts, and revised estate planning documents can dramatically alter who ultimately receives property. Expectations based on old documents or family conversations often lead to disappointment and lawsuits.

For many New Jersey families, real estate is among the most valuable assets in an estate. Questions about who inherits a home, whether the property should be sold, and how ownership transfers after death are common sources of conflict. If you are dealing with inherited real estate, my article on Inherited Homes in New Jersey discusses several of the practical and legal issues that may arise.

The broader lesson of Christakos v. Boyadjis is that good estate planning is not simply about signing documents. It is about creating a legally sound plan that accurately reflects your wishes, communicating those wishes clearly, and revisiting the plan as life changes. Taking those steps can help minimize uncertainty, reduce the risk of expensive probate disputes, and provide peace of mind for both you and your loved ones.

Estate disputes do not always end up in court. In some cases, alternative dispute resolution may offer a more efficient path forward. You can learn more in our article on Arbitration Clauses and New Jersey Will Disputes. Likewise, major life events can have unexpected consequences for inheritance rights, as discussed in my post about Death During a Pending Divorce in New Jersey.

Your Right to Make Bad Decisions Under New Jersey Law

Your Right to Make Bad Decisions Under New Jersey Law

by | Aug 11, 2026 | Estate Planning, Guardianship, Legal Bulletin, Living Will, NJ Supreme Court, Power of Attorney

A 2020 New Jersey Supreme Court decision, S.T. v. 1515 Broad Street, LLC, 241 N.J. 257 (2020), raises a question that matters far beyond the personal injury lawsuit at its center: how much evidence does it take before a court can take away an adult's right to control her own affairs? The answer, the Court held, is a great deal — and the procedures required to get there are not optional.

The case is also a reminder of something that even lawyers sometimes forget - - you have the right to make what may seem like an objectively bad decision. A choice that looks unwise to a lawyer or a judge is not, by itself, evidence of incapacity.

What Happened to S.T.

S.T. was a forty-four-year-old chemical engineer, a Vietnamese refugee who had served in the U.S. Army and earned advanced degrees in engineering and environmental science. In 2008, she was struck on the head by a metal plate that fell from a doorway as she exited her office building in Bloomfield. The injury was serious. The Social Security Administration declared her permanently disabled within a year. Over the following years, she was diagnosed with post-concussion syndrome, major depressive disorder, cognitive impairment, and related conditions — all found to be permanent and causally related to the accident. She made more than 500 visits to healthcare providers.

She filed a personal injury lawsuit against the building owner and others. During the litigation, the defendants made an offer of judgment for $475,000. S.T. rejected it, against the advice of her attorney, who believed the offer was in her best interest given the challenges in proving her case.

Rather than accept her decision, S.T.'s own attorney filed a motion to have a guardian ad litem appointed to determine whether she had the mental capacity to make litigation decisions. He did not copy S.T. on the motion. The court appointed one without giving S.T. notice or a hearing. The guardian ad litem investigated, concluded S.T. lacked the capacity to decide whether to settle or go to trial, and was then granted the authority by the court to make that decision for her. A $625,000 settlement was reached — without S.T.'s consent. She appeared at the final hearing and objected forcefully, comparing the forced settlement to a life sentence. The court approved it anyway.

The Appellate Division affirmed. The New Jersey Supreme Court reversed.

Guardian Ad Litem vs. Legal Guardian: A Critical Distinction

The trial court's core mistake was treating the role of a legal guardian and guardian ad litem as interchangeable. They are not, and the difference is legally significant.

A legal guardian is appointed only after a court has formally adjudicated that a person is incapacitated — meaning impaired by mental illness or intellectual disability to the extent that the person "lacks sufficient capacity to govern himself and manage his affairs." N.J.S.A. 3B:1-2. That process requires a formal complaint, sworn affidavits from qualified medical professionals, at least twenty days' notice to the person, the right to independent counsel, and a hearing at which incapacity must be proven by clear and convincing evidence. Only then may a court appoint a guardian with the legal authority to make decisions on someone else's behalf. For more on how that process works, see Understanding Guardianship in New Jersey and What Happens After You're Appointed Guardian.

A guardian ad litem serves a fundamentally different and more limited function. When a person is alleged — not adjudicated — to be mentally incapacitated, a court may appoint a guardian ad litem to investigate the question and report back. The guardian ad litem acts, as the Court put it, as "the eyes of the court" — an independent investigator, not a decision-maker. The guardian ad litem's recommendations are not binding on the court, and the court cannot delegate its own fact-finding function to the guardian ad litem. The guardian ad litem's job is to advise the court whether a formal guardianship hearing under Rule 4:86 should proceed — not to replace the person's judgment in the meantime.

In S.T.'s case, the court skipped the adjudication entirely. It appointed a guardian ad litem, then immediately handed that person the authority to settle S.T.'s lawsuit over her objection — without ever holding the guardianship hearing that New Jersey law requires. The Supreme Court described this as the trial court "abdicating the Judiciary's nondelegable oversight and factfinding function" and "outsourcing to the guardian ad litem the role of final arbiter of S.T.'s capacity."

The Right to Make a Poor Decision

One of the most important principles running through the Supreme Court's opinion is the one the lower courts failed to apply: making a decision that others consider unwise is not, by itself, determinative of incapacity.

New Jersey law recognizes a clear public policy favoring the right of self-determination for all people. Competent people, the Court noted, "ordinarily can choose what they want, even when their choices are unwise or contrary to their best interests." The Rules of Professional Conduct require lawyers to abide by their client's decisions about the scope and objectives of representation — including the decision whether to settle a lawsuit. RPC 1.2(a). A lawsuit is a property right protected by the Due Process Clause of the Fourteenth Amendment, and that right cannot be taken away without following the procedural safeguards the law demands.

The trial court judge told S.T. at the settlement hearing that she was "a very intelligent woman" but that "sometimes a little knowledge is dangerous" and that the mere fact that she wanted to reject a $625,000 offer was "troubling." The Supreme Court saw that reasoning for what it was: substituting the court's and counsel's judgment for the client's, without the legal authority to do so. As the Court observed, had S.T. not rejected the original $475,000 offer — the very rejection her attorney cited as evidence of her diminished capacity — an additional $150,000 would never have been placed on the table.

This same tension between protection and autonomy runs through all of New Jersey's guardianship law. Even in a formal guardianship proceeding, the Court has held that a family member cannot be bypassed without a plenary hearing and proper due process — and that the incapacitated person's own prior expressed wishes must be considered. See New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases.

When Diminished Capacity Does Not Mean Incapacity

The Court did not rule that S.T. was definitely competent, or that her attorney was wrong to have concerns. It ruled that those concerns, however sincere, had to be tested through a proper legal process before they could justify overriding S.T.'s decisions. Diminished capacity — the standard her attorney described — is not the same as legal incapacity under New Jersey law. A person can process information slowly, struggle with complex tasks, or even make choices others consider irrational, and still retain the legal right to govern her own affairs.

The distinction matters in a range of contexts beyond personal injury litigation. A person without a formal guardian has the right to make their own financial decisions, their own medical decisions, and their own legal decisions — even ones that others in their life consider harmful. Until a court makes a formal finding of incapacity through the process New Jersey law requires, that person's autonomy is legally protected.

The lesson of S.T. is straightforward. Good intentions — whether those of an attorney, a family member, or a court — do not substitute for due process. The procedures New Jersey law requires before a person can be deprived of the right to manage her own affairs exist for a reason. They are not bureaucratic formalities. They are the line between protection and the loss of liberty.

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

by | Jun 23, 2026 | Legal Bulletin, NJ Supreme Court

On November 20, 2025, the New Jersey Supreme Court issued one of the most significant evidentiary rulings in the state’s criminal law in years. In State v. Nieves, the Court held that expert testimony diagnosing Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) — specifically, the theory that shaking an infant without any impact to the head can cause a recognized cluster of injuries — is not reliable enough to be presented to a jury. The decision affirmed rulings by two trial courts and the Appellate Division, and it represents a rare and important judicial reckoning with what has long been treated as settled medical fact in the courtroom.

This post explains what the Court decided, why it matters, and what it says about the broader problem of unreliable science being presented as certainty in the courtroom.

The Two Cases

The decision consolidated two prosecutions involving similar facts. In the first, Darryl Nieves was the primary caregiver of an infant, D.J., who had a complicated medical history including premature birth and cardiac surgery. At eleven months old, D.J. experienced three episodes of seizure-like symptoms over two weeks, each occurring while Nieves was caring for him. D.J. was found to have bilateral retinal hemorrhages and bilateral subdural bleeding. A child abuse pediatrician reviewed his history, found no other explanation, and diagnosed SBS/AHT “within a reasonable degree of medical certainty.” Nieves was indicted on aggravated assault and child endangerment charges. A second defendant, Michael Cifelli, faced a similar diagnosis from the same physician under similar circumstances.

Both men challenged the admissibility of the State’s SBS/AHT testimony before trial, arguing the underlying science was not reliable enough to meet New Jersey’s evidentiary standard.

How New Jersey Tests Reliability

Under New Jersey Rule of Evidence 702, expert testimony is admissible only if the field of inquiry is developed enough that an expert’s opinion can be considered reliable. New Jersey applied the “Frye standard” for these cases, which asks whether the underlying science has gained general acceptance in the relevant scientific field — and courts can identify more than one relevant field, with general acceptance required in each. This matters enormously here: the SBS/AHT diagnosis is delivered by pediatricians, but its scientific foundation traces back to biomechanics, the engineering discipline that studies how physical forces affect the human body — the same field behind crash-test research used in vehicle safety design.

Tracing SBS/AHT Back to Its Scientific Roots

The Court’s opinion traces the diagnosis back to its scientific roots, and that history matters. In 1968, a neurosurgeon studying whiplash injuries from car accidents concluded that brain injury could result from rotational forces on the head and neck alone, without direct impact — research that had nothing to do with infants or shaking. Other researchers later relied on that study to hypothesize that a shaken infant could suffer similar injuries, and through a series of papers in the early 1970s, the theory of infant “whiplash-shaking” began to spread through the medical community.

In 1987, the first biomechanical study actually designed to test the shaking hypothesis using infant models was published — and it concluded that shaking alone does not produce the injuries associated with SBS/AHT. In 2002, the original whiplash researcher published a paper criticizing the way his own work had been used to support the theory. A decade later, the neurosurgeon who first proposed the shaking hypothesis questioned it as well. In other words, the diagnosis used for decades to support convictions was built on biomechanical assumptions that the biomechanical community itself never fully validated, and that some of the theory’s own originators eventually disavowed.

Why the State Lost

At the Frye hearing in Nieves, the State called a single expert, a child abuse pediatrician, who testified that shaking alone could produce the recognized triad of symptoms. The defense countered with biomechanical engineers who testified that no scientific testing has ever established that a human being can generate the physical force necessary to cause those injuries through shaking alone. The trial court found this decisive, noting that the few studies attempting to establish a force threshold relied on monkeys, wooden dolls, or other mechanical stand-ins for an infant’s body — models that cannot reliably substitute for human anatomy. No study has ever measured what shaking a real infant actually produces in force, because no such study could ethically be performed.

The Supreme Court agreed, and its reasoning turned on a critical concession by the State itself. In supplemental briefing, the State acknowledged that disagreement exists among biomechanical engineers generally regarding whether shaking alone can cause abusive head trauma. The Court treated that admission as significant evidence, on its own, that the biomechanical community has not reached general acceptance on the question — and emphasized that biomechanics is not peripheral, but the very field from which the SBS/AHT theory originated. The Court acknowledged general acceptance within much of the medical and pediatric community, but held that was not enough. The State did not meet its burden because biomechanics is also a relevant scientific community and general acceptance was lacking there.

What the Decision Does Not Do

The ruling is narrower than it may sound. The Court did not hold that abuse involving head trauma is unprovable, and did not bar physical evidence of abuse from reaching a jury. Where there is independent evidence — bruising, fractures, an admission, or any other physical indicator of impact or injury — the State remains free to present it. What the Court excluded is expert testimony asserting, as a matter of medical certainty, that the symptoms alone prove the child was shaken without any impact, when the underlying biomechanical science does not support that conclusion. The Court also left the door open for the future: New Jersey adopted a Daubert-based reliability standard for some expert testimony in 2023, and the Court noted that if new, reliable scientific evidence develops, the State could attempt to establish SBS/AHT’s reliability under that standard in a later case. This is not a permanent ban — it is a determination that, on this record, the science was not there yet.

The decision was also not unanimous. One justice dissented, arguing that SBS/AHT is endorsed by every major medical association involved in its diagnosis and treatment, that every other state to consider the question has allowed the testimony, and that the majority let a handful of biomechanical engineers override the broader medical consensus. The majority’s response was that the State’s own concession of disagreement among biomechanical engineers, combined with that field’s direct relevance to the theory’s scientific foundation, was enough on its own to defeat a claim of general acceptance — regardless of how many medical organizations had endorsed the diagnosis.

Why This Case Matters Beyond These Two Defendants

SBS/AHT prosecutions are not rare. For decades, a diagnosis delivered with confidence by a pediatric specialist has been sufficient, in courtrooms across the country, to support a conviction — even when the medical diagnosis itself was the only evidence of abuse. New Jersey’s highest court has now said, in a published and precedential decision, that this practice rests on a scientific foundation that has not been adequately tested, and that the field most directly responsible for that foundation has not reached consensus on its core premise.

This is what happens when a court takes seriously its role as a gatekeeper against unreliable expert evidence. Science adapted specifically to answer a legal question — rather than developed independently and later applied to one — deserves exactly this kind of scrutiny. The history traced in this opinion shows a theory that migrated from automobile whiplash research into infant medicine, gained momentum through repetition and institutional endorsement, and was never tested against the basic question of whether shaking an infant can actually generate the force the theory requires. That is not how reliable science works, and it is not how evidence that can take away someone’s liberty should reach a jury.

For families and defendants facing an SBS/AHT allegation in New Jersey, this decision is significant. It does not mean such a charge can never be proven — independent physical evidence of abuse remains fully admissible. But the diagnosis alone, offered as medical certainty that shaking without impact occurred, can no longer reach a New Jersey jury without first surviving the scrutiny this opinion demands.

Ex-Spouse’s Right to Payable on Death Bonds Not Altered by Divorce Agreement

Ex-Spouse’s Right to Payable on Death Bonds Not Altered by Divorce Agreement

by | Feb 3, 2025 | Estate Administration, Estate Planning, Legal Bulletin, NJ Supreme Court, Probate

On January 27, 2025, in In the Matter of the Estate of Michael D. Jones, Deceased (A-28-23) (088877) the Supreme Court of New Jersey addressed whether an ex-spouse’s right as the pay-on-death (POD) beneficiary of U.S. savings bonds was modified by the couple’s divorce agreement. The case, which involved the interplay between federal bond regulations and New Jersey’s estate and family law, ultimately affirmed that the ex-wife retained her right to the bonds despite the divorce.

Case Background

The husband purchased Series EE U.S. savings bonds during his marriage to his ex-spouse, designating her as the POD beneficiary. The couple later divorced and executed a divorce settlement agreement, which provided for certain asset distributions but did not explicitly mention the savings bonds. The settlement agreement also required him to pay $200,000 in installments. At the time of his death, the ex-wife had received approximately $110,000 of this sum. After his passing, she redeemed the savings bonds, which were valued at approximately $77,800. The estate, administered by his daughter from a prior relationship, argued that the bond redemption should count toward the outstanding settlement agreement payments, effectively satisfying his financial obligation. The trial court agreed, but the Appellate Division reversed the decision, holding that federal regulations governing savings bonds preempted state law, thereby affirming the ex-spouse’s entitlement to the bonds. The NJ Supreme Court affirmed the Appellate Division’s decision, though it disagreed regarding the issue of preemption.

Key Legal Issues

  1. Federal Preemption and State Law

    • The Appellate Division held that N.J.S.A. 3B:3-14, which revokes certain property transfers upon divorce, was preempted by federal law regulating savings bonds.

    • However, the New Jersey Supreme Court disagreed, stating that preemption was not at issue because the state statute explicitly defers to governing instruments, which in this case were the federal regulations governing savings bonds.

  2. Effect of the Divorce Settlement Agreement

    • The court found that the settlement agreement was silent on the savings bonds and did not revoke the ex-spouse’s beneficiary status.

    • A catchall provision in the settlement agreement stating that “any marital asset not listed belongs to the party who has it in their possession” was interpreted as reinforcing the ex-spouse’s claim to the bonds, because they were the husband’s before his death and immediately passed to the ex-spouse upon death.

  3. Right of Survivorship Under Federal Law

    • Federal regulations establish that upon the death of a bondholder, the designated POD beneficiary becomes the sole owner.

    • The court ruled that the trial court’s assumption that Michael intended to revoke Jeanine’s status was speculative and contrary to federal protections of survivorship rights.

Court’s Decision

The Supreme Court of New Jersey ultimately ruled that:

  • Jeanine rightfully retained ownership of the savings bonds as the designated POD beneficiary under federal regulations.

  • The bonds were separate from the $200,000 owed to Jeanine under the settlement agreement, meaning she was still entitled to the remaining balance of the settlement.

  • The trial court’s ruling impaired the ex-spouse’s federal survivorship rights, a result not permitted under the governing regulations.

Implications and Takeaways

This case serves as an important reminder for estate and family law practitioners, particularly concerning the treatment of federal savings bonds in divorce settlements. Key takeaways include:

  • Explicit Clarity in Divorce Agreements: Individuals going through a divorce should ensure that all assets, including savings bonds, are explicitly addressed in settlement agreements to avoid future litigation.

  • Deference to Federal Regulations: State courts must recognize and uphold federal regulations governing financial instruments like U.S. savings bonds.

  • Automatic Revocation Limitations: N.J.S.A. 3B:3-14 does not automatically revoke all beneficiary designations upon divorce when federal law dictates otherwise.

  • Importance of an Estate Plan: The case highlights the importance of seeking estate planning guidance and understanding beneficiary designations, as well as probate versus non-probate assets.

By affirming the ex-spouse’s rights to the bonds, the court reinforced the importance of adhering to federal estate regulations while also ensuring fair application of state divorce laws. This ruling will likely guide future disputes involving federal financial instruments and marital property division.

Tax Sale Law Violates Fifth Amendment Takings Clause Says NJ Supreme Court

Tax Sale Law Violates Fifth Amendment Takings Clause Says NJ Supreme Court

by | Jan 25, 2025 | Consumer Advocacy, Legal Bulletin, NJ Supreme Court

On January 9, 2025, the New Jersey Supreme Court issued a decision addressing whether the state’s old Tax Sale Law (before it was amended in 2024) violated the Fifth Amendment Takings Clause by allowing the forfeiture of surplus equity from tax foreclosures without just compensation. In an opinion by Chief Justice Stuart Rabner, in 257-261 20th Avenue Realty, LLC v. Alessandro Roberto (A-29-23) (088959) the Court found the prior version of the Tax Sale Law to be unconstitutional. Relying on the U.S. Supreme Court’s 2023 ruling in Tyler v. Hennepin County, the Court held that property owners in New Jersey have a recognized right to surplus equity—the value of a property beyond the amount owed in taxes. The ruling clarified that private lienholders, acting jointly with municipalities to enforce tax foreclosures, are considered state actors subject to the requirements of the Takings Clause of the US Constitution.

Background of the Case

The case arose from a Paterson, NJ property owner’s failure to pay three sewer tax bills totaling just $606.00. The City of Paterson placed tax liens on the property, which were purchased by 257-261 20th Avenue Realty, LLC at a public auction. Years later, the company filed for foreclosure, and the property owner failed to respond, resulting in a judgment of foreclosure.

The property owner subsequently sought to vacate the judgment, arguing that the property —valued at over $500,000.00 — held significant equity vital for his retirement. He had invested $200,000.00 in improvements and had set aside $50,000.00 to pay the judgment. Despite these circumstances, the foreclosure judgment transferred the entire property, including its substantial surplus equity, to the lienholder without compensating the property owner for the value exceeding the tax debt.

The trial court vacated the judgment under NJ Court Rule 4:50-1(f), finding exceptional circumstances, and the Appellate Division affirmed, citing the U.S. Supreme Court’s decision in Tyler v. Hennepin County (2023), which held that forfeiture of surplus equity in tax foreclosures violates the Takings Clause.

Key Issues Addressed by the NJ Supreme Court

  1. Takings Clause and Surplus Equity: The Takings Clause of the Fifth Amendment prohibits the government from taking private property for public use without just compensation. The NJ Supreme Court, relying on Tyler, held that surplus equity—the value of the property exceeding the tax debt—is a protected property right. The pre-2024 Tax Sale L allowed the complete forfeiture of surplus equity to lienholders, a practice deemed unconstitutional.

  2. Lienholders as State Actors: The Court rejected the argument that private lienholders are not state actors and thus not subject to the Takings Clause. Tax foreclosure involves a public function—collecting taxes—and relies on a statutory framework created by the state. The Court determined that the collaboration between municipalities and lienholders renders the latter state actors for constitutional purposes.

  3. Public vs. Private Use: The Court dismissed the contention that the taking of surplus equity was not for public use. The Tax Sale serves a public purpose by enabling municipalities to collect taxes. However, the US Constitution requires that property taken for public use must be accompanied by just compensation, which the pre-2024 TSL failed to provide.

Significance of the Tyler Precedent

The NJ Supreme Court’s decision heavily relied on the U.S. Supreme Court’s 2023 ruling in Tyler v. Hennepin County. In Tyler, the Court held that a Minnesota tax foreclosure law allowing the forfeiture of surplus equity was unconstitutional. Similarly, the NJ Supreme Court found that property owners in New Jersey have a recognized right to surplus equity under both state and federal law. As Tyler is binding precedent, the NJ Supreme Court clarified that it did not need to rely on Rule 4:50-1(f)to vacate the foreclosure judgment but instead resolved the case on constitutional grounds.

Impact on Tax Foreclosure in New Jersey

This ruling has profound implications for New Jersey’s tax foreclosure system. Property owners now have a constitutionally recognized right to retain surplus equity in foreclosure proceedings. Municipalities and lienholders cannot confiscate more value than is necessary to satisfy the tax debt. This is a clear shift toward greater accountability and fairness in tax foreclosure practices. It is a major win for the average New Jersey property owner.

N.J. Supreme Court Says Adult Protective Services Not Responsible for Attorney Fees for Appointed Guardianship Counsel: In the Matter of A.D.

N.J. Supreme Court Says Adult Protective Services Not Responsible for Attorney Fees for Appointed Guardianship Counsel: In the Matter of A.D.

by | Jan 23, 2025 | Guardianship, Legal Bulletin, NJ Supreme Court

On December 11, 2024, the New Jersey Supreme Court issued its opinion for In the Matter of A.D., (A-30/31-23) (088942) addressing whether court-appointed attorneys and temporary guardians are entitled to fee awards from Adult Protective Services (APS) when an incapacitated person’s estate lacks sufficient funds. The Court held that fee awards are not available.

Case Overview

The case originated in June 2020, when the Sussex County Division of Social Services, Office of Adult Protective Services (APS), sought a plenary guardianship for “Hank,” an alleged incapacitated person. The court appointed Steven J. Kossup, Esq. to represent Hank and Brian C. Lundquist, Esq. as temporary guardian. Both attorneys took significant steps to stabilize Hank’s life, ensuring he had stable housing, financial aid, and medical care. Despite APS’s recommendation for a permanent plenary guardian, Kossup and Lundquist advocated for a limited guardianship. Their position was supported by an expert psychologist, retained at Lundquist’s expense, who opined that Hank required only a limited guardianship. The trial court ultimately agreed. Kossup and Lundquist then applied for compensation for their services, seeking to have their fees paid by APS, as Hank’s estate lacked sufficient funds. While APS did not contest the amount of the fees, it argued that paying such fees would compromise its ability to serve its clients. The trial court and the Appellate Division denied the fee applications, prompting an appeal to the New Jersey Supreme Court.

Supreme Court’s Analysis

In a unanimous opinion, the New Jersey Supreme Court affirmed the denial of the fee applications. The decision emphasized the following key points:

1. The American Rule and Limited Exceptions

New Jersey adheres to the “American Rule,” which requires litigants to bear their own legal costs unless explicitly authorized by statute or court rule. New Jersey Court Rule 4:42-9(a) provides eight exceptions to the rule, two of which were invoked in this case:

  • Statutory Authorization: The Court found that neither the Adult Protective Services Act (APS Act) nor the statutes governing guardianships authorize fee awards against APS. Both statutes limit fee awards to the estate of the incapacitated person.
  • Guardianship Rules: Rule 4:42-9(a)(3) and Rule 4:86-4(e) permit fees to be paid from the incapacitated person’s estate or “in such other manner as the court shall direct.” However, the Court clarified that this language does not authorize fee awards against APS.

2. Rejection of the DiNoia Precedent

The Court explicitly declined to adopt the holding in In re Guardianship of DiNoia (2019), where the Appellate Division upheld a fee award against APS. The court in DiNoia ordered APS to pay counsel fees because APS had “protracted the litigation” by failing to provide information in a timely manner, and court-appointed attorney made exceptional efforts on behalf of his client. The Supreme Court held that such reasoning does not align with the American Rule or the governing statutes and rules, and ruled that there is no basis to authorize fee awards against APS under any circumstances, even if it protracted litigation.

3. Pro Bono Service

The Court highlighted the longstanding tradition of pro bono service in guardianship matters, particularly when the incapacitated person’s estate lacks resources. It acknowledged the substantial burden this places on attorneys and urged trial courts to consider the equitable distribution of these assignments.

Practical Guidance for Future Cases

The Court offered several recommendations for handling guardianship matters:

  • Clear Communication: Judges should inform attorneys and guardians at the outset if their service is expected to be pro bono.
  • Court Oversight: Judges, not Surrogates, are responsible for appointing counsel, determining the need for temporary guardians, and addressing compensation.
  • Expert Fees: Temporary guardians serving pro bono should consult the court before retaining experts, ensuring funds are available to cover fees.

Broader Implications

The ruling in In the Matter of A.D. establishes that APS providers cannot be held financially responsible for court-appointed attorney fees, even if APS causes delay and the need for the attorney to perform extraordinary work on the case. While this reinforces the American Rule, it raises questions about the sustainability of pro bono service in guardianship cases, especially given the increasing demand for such legal representation. The Court expressed gratitude for the exemplary work of Kossup and Lundquist but acknowledged the need for systemic changes to address the burdens of pro bono service. This may include increased funding for legal aid programs or other measures to ensure fair allocation of responsibilities. As the population continues to age and demand for guardianship services grow, the legal community and policymakers must work together to ensure equitable and sustainable solutions.