2053 Woodbridge Avenue - Edison, NJ 08817

Tuesday, May 29, 2012

E393 1. Asking Location of Handgun Permitted if Exigent Circumstances. 2. Out of Court Statements Not Admissible. 3. Prior NY DWI Counts in NJ for Enhanced Penalty. 4. Nuts & Bolts of Elder Law & Estate Administration Seminar for NJ Attorneys

Greetings Kenneth Vercammen,   
A special thanks goes out to the over 100 attendees of Kenneth Vercammen's St. Patrick's Day Party which was held at Bar A in Belmar on March 16, 2012.  
Stay tuned for details on Kenneth Vercammen's Annual Summer Blast which will also be held at Bar A!  
1. US Supreme Court rules Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico   131 S. Ct. 2705  (2011)

       The Sixth Amendment's Confrontation Clause gives the accused "[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of "[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a "forensic evidence" exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as "testimonial" for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report's statements. 
       The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. 

More law videos at the NJ LawsTube:

       A bill introduced in Trenton would decriminalize and ease the penalties for simple possession of marijuana. Current New Jersey law makes possession of 50 grams or less of the drug a disorderly persons offense. The bill, A-4252, would subject possessors of 15 grams or less of marijuana to civil penalties only, collected by the municipality where the offense takes place. The proposed penalties are $150 for a first violation, $200 for a second and $500 for a third or subsequent one. The measure also would amend N.J.S.A. 2B:12-17 to establish the new offenses as subject to municipal court jurisdiction.   
Source: NJLJ  Daily Briefing 

3.  Contesting a Will Can Be Extremely Difficult         

When a will is contested, it usually means that one or more family members feel they have been unfairly cut out or shortchanged. According to Bizactions, the process varies from state to state and it must be done within certain time limits or the opportunity is lost.

Court Upheld Will that Cut Out Relatives 
   A Rhode Island court upheld a woman's will that ignored her nieces and nephews and left most of her assets to a home caregiver she only knew for 18 months. Her relatives sought to invalidate the will alleging a lack of testamentary capacity and undue influence.    
       Facts of the case. Ann Marie Picillo was already frail and receiving in-home hospice care when she changed her will, according to court documents. She contacted an attorney, Richard Walsh, who represented her in a variety of matters over 18 years and asked him to come to her home. However, Walsh was unable to execute a new will that day.    Picillo was anxious to complete her will and summoned another attorney. The second attorney decided against preparing the will "citing concerns about testamentary capacity, as well as the possible undue influence."    Walsh, her original attorney, then came to the home and met privately with Picillo. Although previous drafts of her will created charitable trusts for animals, Picillo told the attorney her wishes had changed. She now wanted to leave her the bulk of her assets to her employee-caregiver, Cristina Castellanos.   
        The two women met when Picillo was hospitalized and Castellanos was a nursing assistant. After hiring her, Picillo moved the caregiver and her sons to an apartment she owned, sent the children to camp, bought them a dog and spent time with the family.    Picillo suffered from several conditions including rheumatoid arthritis. She was immobile, emaciated, had one leg amputated, and was prescribed morphine for pain.    Several witnesses testified that Picillo raved about her relationship with Castellanos. Without her care, Picillo told Walsh, she would certainly be in a nursing home -- which she vehemently opposed.    Her feelings for Castellanos were in contrast to the animosity Picillo expressed for her nieces and nephews. Both attorneys testified Picillo wanted them out of her will. While the reasons for the negative feelings weren't clear, the court found two incidents "enlightening." The first was when a nephew living with Picillo wouldn't feed her in the mornings. The second was when a niece left her alone for a weekend without food, "sitting in her own waste."   After Picillo met with Walsh, he quickly executed a new will. She died 10 days later.    The court found Walsh's testimony credible, pointing to his long relationship with Picillo, his 24 years of experience practicing law, and the fact he completed more than 200 wills.    The court stated there was a "true and caring relationship" between the caregiver and Picillo, that she had testamentary capacity and there was no undue influence. "Her will is a reflection of the relationships she built during her lifetime," the court added "and the relationships she most appreciated as her demise became inevitable." (Estate of Picillo, R.I. Superior Court, KP2007-1217, 4/26/11)
             The expected "natural" manner, which means to spouses, children and other blood relatives. If a will is changed shortly before death to give everything to a neighbor or a new acquaintance, family members are likely to mount a challenge.However, it can be extremely difficult to successfully contest a will. Courts are reluctant to interfere with the wishes of deceased individuals and require substantial evidence to overturn a will. The goal of courts is to determine testators' true intentions. (For an example of one case in which a court upheld a will executed 10 days before a woman died, see the right-hand box.)Here are the basic reasons a will can be contested:
1. Undue Influence. Was the decedent pressured or influenced during the drafting of the will by someone in a position to benefit from it?

One way this might be proved is with the existence of an earlier will that was significantly different.

For example, a father signs a will naming his daughter and his son as equal beneficiaries of his estate. He gives copies to both children. Ten years later, the father becomes ill and moves in with his daughter. She restricts her brother from seeing him. A short time later, the father dies and the brother finds out that the will was secretly rewritten with all assets going to his sister. He challenges the will on the grounds that his father was unduly influenced and the prior will should be reinstated. The brother claims he was prevented from seeing his father. However, the sister argues that she took care of the father and the brother ignored him. That is her understanding of why the father changed his will.

2. Lack of Capacity. Was the decedent mentally able to understand what he or she was signing? Could the person identify his or her assets and their value? Did he or she know the family members?

Challenges can occur when individuals are sick, weak, and heavily medicated. But merely being in failing health is not enough to successfully contest a will. Courts look at the facts and circumstances to determine if a person was mentally competent. Even someone with Alzheimer's disease can be shown to be in a lucid state at the moment a will was executed.

To show capacity, medical records are important. In some cases, a letter is secured from a doctor at the time a will is executed stating that the person signing a will is mentally competent. Additional witnesses (more than legally necessary) can be present at the signing of the will to provide further evidence that the testator had the necessary capacity.

3. Improper Execution. Was the will signed? Was the signature a forgery? Was there fraud involved? Were the required number of disinterested witnesses in the room when the will was signed? Were the required questions asked in front of the witnesses?

A will can be contested if it is not properly executed. In fact, a court may determine on its own that a will is invalid and not acceptable for probate if formalities were not complied with, including the lack of an affidavit of attesting witnesses. Having an attorney supervise a will provides the presumption that a will was properly executed.

Ways to Help Minimize the Chance of a Will Contest
If you are concerned there may be a dispute over your estate someday, proper drafting and execution of the will can go a long way toward making sure your wishes are ultimately carried out. In addition, you may be able to move assets into a trust or vehicles that pass outside of a will, such as a revocable living trust. You may also want to:
   Insert a "no contest" or "in terrorem" provision into your will that states that if any named beneficiary in contests or seeks to invalidate it because of undue influence or lack of capacity, the person will be disinherited (although this depends on the laws of the state).
Consult with your attorney about specific, proactive steps you should take to ensure your wishes are carried out.
4. Community Events in April

April 14               Edison Elks Installation

April 25               ICLE Nuts and Bolts of Elder Law - NJ Law Center

Charity Running races:

April 21     Runapoloza Jersey Shore Relay For Special Olympics 5,4,3,2,1 teams 26 miles, 9am From Seaside Hts To Asbury Park 732-681-9464 free beer!  If you cant run, you can volunteer or pay to go to party
April 22     Stomp the Monster 5K Marlboro, NJ.  The USAT-certified 5K goes off at 10:30. The event includes a festival featuring beer, food and fun after the race
April 28     Lake Como 5k 10:00 free food and reduced price drinks Bar A after race
April 28     Hugs for Brady  6pm
April 29   Franklin Food Bank  62 mile & 40-mile bike 62 Mile Metric Century -   7:30 AM, $45.00 40 Mile 6 Towns of Franklin -  http://www.franklinfoodbank.org/events/registra_tour.htm