PROBABLE INTENT AS TO TRUSTS The doctrine of probable intent had been codified with the probate code effective in February 2005, in N.J.S.A. § 3B:3-33.1.  As to trusts, N.J.S.A. § 3B:3-33.1(b) provides in part (emphasis added): The intention of a settlor as expressed in a trust, or of an individual as expressed in a governing […]

Reformation, Modification and Termination: New Jersey Common Law Reformation Under New Jersey common law, the power of reformation enables the court to correct a mistaken trust term or provision that frustrates the purpose of the trust.  When a mistake frustrates the purpose of a trust, a court in equity will reform the trust and bring […]

REFORMATION, MODIFICATION, INTERPRETATION, REVOCATION AND TERMINATION OF TRUSTS Reformation, Modification and Termination: NJ UTC Prior to the adoption of the NJ UTC, the law governing the modification or termination of trusts was primarily common law.  Much of that common law is now codified by the NJ UTC. For instance, the NJ UTC affirms that a […]

On March 28, 1994, Helen Weste executed a will that made three charitable bequests; left her personal property to one niece; and bequeathed the remainder of her estate in different percentages to a sister and eight nieces and nephews, including Joanne Halkovich.  She named her ex-husband John Weste executor. In 1995, Helen left the apartment […]

CREATION OF TRUSTS, INCLUDING WHETHER A VALID TRUST EXISTS This section will address the requirements to create a valid trust.  Given the fundamental nature of this topic, the survey will include at times national standards and New Jersey common law, along with the NJ UTC. Basic Requirements to Create a Trust Basic Requirements to Create […]

General Provisions and Definitions: Who is a Beneficiary Article 1 of the NJ UTC includes general provisions and definitions.  The definitions for the UTC are in N.J.S.A. § 3B:31-3.  Of particular significance are the following definitions: Beneficiary vs. Qualified Beneficiary. A trust “beneficiary” includes a person: “(1) who has any present or future interest, vested […]

Although the NJ UTC takes effect on July 17, 2016, it applies to trusts created before, on, or after its effective date.  N.J.S.A. § 3B:31-84(a)(1). The NJ UTC applies to express trusts, charitable or noncharitable trusts, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the […]

On January 19, 2016, New Jersey enacted the Uniform Trust Code (“UTC”), to take effect on July 17, 2016.  The new statute is in Chapter 31 of Title 3B of the New Jersey statutes. This article delineates New Jersey law generally, and the UTC as enacted in New Jersey (at times referred to as “NJ […]

On January 19, 2016, New Jersey  enacted the Uniform Trust Code (“UTC”), to take effect on July 17, 2016.  The new statute is in Chapter 31 of Title 3B of the New Jersey statutes. This is the first part of a bi-weekly series in which we will discuss New Jersey law generally, and  the UTC […]

In the Matter of the Estate of Adrian J. Folcher 2016 N.J. LEXIS 330 (N.J., Apr. 26, 2016) Adrian Folcher (“Folcher”) had three children with his first wife, who died in July 2002.  In December 2002, Folcher married Bernice Folcher (“Bernice”). In 2003, Folcher and Bernice signed a postnuptial agreement, which provided that any real […]