If you do not have a will, your wishes for what happens to your possessions after your death may not come to pass. Even if you think you do not have a large estate, if you own a home or have other assets, it is worthwhile to do some estate planni
ng, and essential that you have a will.
Take the recent case of Margaret Flood. She had an estate of $480,000 (perhaps the value of her house). She had four children, two of whom were disabled. The government had been providing services to these children, and thus had a right to reimbursement if the children were to ever have assets of their own. Ms. Flood had wanted to shelter her children’s inheritance to protect it against taxes and other liens, so that the disabled children especially would have the benefit of what she left to them. She started down the right path – consulting an attorney and indicating a desire to have a will with the necessary provisions, specifically special needs trusts for the disabled children so that they, not the government, would get the inheritance. Unfortunately, she did not execute a will before she passed away.
Upon her death, the estate’s administrator filed an action to establish the trusts, asserting that this had been Ms. Flood’s intent. Absent these trusts, the money would have gone directly to each of the children, and the government would have a legitimate claim for reimbursement from the disabled children. That is because if a person dies without a will, the estate is distributed strictly according to a method set forth in the law. The trial court allowed the trusts to be established, citing the legal doctrine of probable intent, which allows for the intent of the testator (the person who made the will) to be carried out.
But the Appellate Division reversed. If the words of a will seem to imply one thing, but it is proved that the testator really meant for something else to happen, the court does have the power to modify the will so that the intent of the deceased is honored. But here, there was no will to be modified. If a person does not even have a will, then their pre-death intent doesn’t count. So, the children inherited directly with no trusts, and the inheritance was not protected.
The old saying is true: if there’s a will, there’s a way. Make sure you have a will and that it is up to date.
LIKE A BAD NEIGHBOR – The Duty To Warn
When your conduct puts someone else in danger, you may be held responsible if that person is injured. That’s an easy concept to understand when the facts are simple, such as the person who drives negligently and causes injury to a pedestr
ian or a passenger. Sometimes, it’s up to the court to sort it out.
As alleged in a recent lawsuit, Jean Robert Vertus ran a financial business from his second floor apartment in Irvington, NJ. It was a dangerous area, and he had already been robbed once. Around 5:00 p.m., he noticed a departing customer acting strangely, and suspected something was going on. He ducked out of a side exit, and proceeded to the home of people he knew three buildings down, Mr. Novaly and Mr. St. Louis. He told them “something” was going on in his apartment. He did not ask them to call “911” because he claims he did not know exactly what was going on. He did ask them to call his apartment, which they did, only to find that the line was busy.
Novaly and St. Louis went to investigate; Vertus stayed behind because he was scared. At no time, did he tell his neighbors that he suspected a robbery was taking place.
Novaly’s attempt to be of assistance ended in tragedy, as he was shot and killed by the robbers outside the apartment building. His estate sued Vertus.
Vertus claimed no liability. He said that he did not force Novaly to come to his aid; Novaly assumed whatever risk there was. Not so, said the Appellate Division. Vertus’ action of requesting assistance for what he knew (or at least strongly suspected) was a dangerous condition put Novaly at risk. This was compounded by Vertus’ failure to adequately explain the situation to Novaly. Had Novaly known that there was a robbery taking place, he might not have been so willing to investigate. It is likely he may have called “911” and waited for the police to handle it.
Every citizen has a duty to refrain from exposing others to foreseeable criminal or negligent acts of others. Vertus had a responsibility not to let Novaly expose himself to danger without fully informing him of what he was walking into.