Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

Punitive Damages Okayed in Probate Dispute Case:

By Fredrick P. Niemann, Esq. a New Jersey Probate Dispute attorney

Our New Jersey Supreme Court has ruled under what circumstances punitive damages can be awarded against a fiduciary involved with Wills, Trusts, Probate proceedings and lifetime transfers.

 
A lawsuit was filed against a doctor who was alleged to have persuaded an elderly woman to transfer a large home in Spring Lake, New Jersey to him in lieu of the local Volunteer First Aide Squad who was the prior testamentary beneficiary under her Last Will and Testament.  In its analysis, the Court concluded that the remedy of punitive damages is limited to situations where an individual (who is essentially a stranger to the testator) gains access to him or her through undue influence and then carries out a scheme to place himself or herself in a position to seize control of the testator=s (decedents) assets through a lifetime transfer or a bequest under their Last Will and Testament.  Generally punitive damage awards filed in the Probate Division of the Superior Court must be in compliance with the New Jersey Punitive Damages Act.  This remedy will be infrequent and limited to circumstances in which the person who received the lifetime gift or bequest is an individual who otherwise cannot be punished through a lesser available remedy by the Probate Court. Because of the unique facts of this case, an award of compensatory damages and potentially punitive damages was available.   This decision is significant for the proposition that Executors, beneficiaries of lifetime and testamentary gifts when obtained through undue influence, suspicious circumstances, etc.  can be held personally liable for punitive damages.

 
If you have any questions, contact Fredrick P. Niemann, Esq. toll-free at (888) 800-7442, or e-mail him at fniemann@hnlawfirm.com.  He is happy to answer your inquiries.

By Fredrick P. Niemann, Esq. a New Jersey Contract attorney

Can an e-mail (s) become a contract?  Good question.  Many business men and women think e-mails cannot bind them to a “deal”, thinking that only a written or verbal agreement can form a contract.  New Jersey’s law review begs to differ.  Today a company cannot claim a contract has been formed by the mere exchange of an e-mail(s).   In some cases, they may be correct.

In real estate contracts and leasing deals, when broker’s exchange e-mails often they assume that a formal contract or lease will be prepared and additional negotiations will take place specifying all of the important terms.  But in New Jersey, the law treats an e-mail and their exchange just as it would any other offer and acceptance.  The courts look to the content of the e-mail.  If you have an offer and acceptance, and all of the material terms of a deal are contained in the e-mail, you may have a valid enforceable contract even if you intend to “formalize” the agreement in a paper lease.  E-mail exchanges can sometimes (but not always) create a binding contract even if the parties intend to memorialize their agreement in a subsequent writing.

To help minimize the likelihood of being dragged into a contract lawsuit because of an exchange of e-mail(s), or to help you prevail if you are called into court by a dissatisfied customer who wants to claim a deal, there are several practical steps you can take.  First, you should make it clear, in your e-mail exchange, that there is no agreement, whatsoever, until a formal written document is prepared and duly signed by both parties.  Second, consider adding to your e-mail signature a statement such as this; “To the extent this e-mail discusses the terms of a proposed contract, the e-mail is not intended to bind the party sending the e-mail or its principal to a contract, which contract is expressly understood to be formed only upon the subsequent negotiation of a formal written document, duly agreed-to and signed (via handwriting) by both respective parties”.

New Jersey contract law is just beginning to address the use of e-mail(s) as part of contracts.  The law is generally many years (if not a decade) behind technological advancements.  It is anticipated that as society continues to develop new technologies, like text messaging, the law will slowly evolve as well.

Contact me personally today to discuss your contract matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq. a New Jersey franchise lawyer

In New Jersey and throughout all 50 states, the franchise agreement is the cornerstone document of the franchise relationship. It is this document that is legally binding on both parties, laying out the rights and obligations of each party. You will always find attached to the FTC disclosure statement a sample franchise agreement or presented separately. Either way, under Federal law, you are entitled to receive it as a prospective franchisee five business days before signature. You should have it reviewed by a lawyer familiar with New Jersey franchise matters–especially since most agreements are extremely one-sided in favor of the franchiser. No one should enter into a franchise and expect to have a fairly written contract.

The agreement will contain provisions covering, in considerable detail, the obligations of the franchiser (the company) and franchisee (you) regarding operating the business; the training and operational support the franchiser will provide (and at what cost); your territory and any exclusivity; the initial duration of the franchise and any renewal rights; how much you must invest; how you must deal with things such as trademarks, patents and signs; what royalties and service fees you will pay; tax issues; what happens if you should want to sell or transfer the franchise; advertising policies; franchisee termination issues; settlement of disputes; by the company, operating practices, cancellation, and attorney fees.

There is no standard form of franchise agreement because the terms, conditions, and the methods of operations of various franchises vary widely depending on the type of business involved. For example, franchises for printing, employment agencies, and automotive products will differ from the franchises for fast food service, convenience stores, or clothing.

Contact me personally today to discuss your franchise matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq. an Employment Law Attorney

Wrongful termination, Wrongful dismissal, Employment Law, Discharge, Wrongful Discharge, Rights of Employee to Private Life, Employer, Employee

 Many employees do not realize that employers in New Jersey may have the right to regulate and prohibit personal lifestyle choices after work and during their private time unless the conduct falls within a clear cut constitutional privacy protection or meets a clear mandate of public policy protecting private lifestyle choices.  Generally, the prohibited conduct relates to extramarital affairs, romantic relationships among co-workers, free speech, smoking bans and other private lifestyle choices.    All employers and employees are cautioned that the scope of the prohibited conduct will be closely reviewed by the Courts in New Jersey.   New Jersey seems to follow (as customary) its own thoughts on permissible versus impermissible conduct. 

In a leading case, the Court has indicated that while an employer is free to discharge an employee at will, the general rule must yield when an employer Aacts contrary to public policy in accordance with the leading New Jersey case of Pierce vs. Ortho@.  
Questions about what may or may not be permissible versus dischargeable private behavior by an employer?  Contact Fredrick P. Niemann a New Jersey Employment lawyer who directs the firm’s employment related issues.  He can be reached toll-free at (888) 800-7442 or by e-mail at fniemann@hnlawfirm.com.

Contact me personally today to discuss your employment matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq. a Contract attorney

Two executives held a meeting; the agenda was about forming a new business together.  The discussion later transformed into a one of an offer of employment to one of the executives.
 
For two men in the upper tiers of New Jersey businesses, they chose a decidedly low-tech way to memorialize their agreement. The end result, however, shows how substance can sometimes triumph over form in the law of New Jersey contracts formation.

At the end of their meeting, the executives simply wrote out the agreement by hand on two notebook pages, and both men
signed it. The writing included specifics as to how the newly hired executive would be compensated, the terms on which he could quit if he became unhappy, and what would happen if intellectual property involved in the deal could not be transferred to the telecommunications firm. It also included the statement that “[t]he parties will complete formal contracts as soon as possible but this is binding.” This would turn out to be pivotal language in the litigation that followed.

Unfortunately, the new arrangement quickly went downhill.  After
about six months the new employee was fired. The “formal contracts” envisioned from the beginning were never drafted and signed. When the former employee sued for breach of contract and other claims, over six years of litigation in the New Jersey Courts ensued, with two trials and two appeals.

Much of the case focused on whether the handwritten agreement that started everything was a valid, binding contract. The telecommunications company argued that it was merely an “agreement to agree.”

However, a jury eventually ruled that the agreement was valid, and that the employer had breached the terms of the contract represented by the two notebook pages.

Four factors are usually considered in determining whether a New Jersey “preliminary agreement” is binding. In this case, the first two clearly favored the fired executive:  There was no explicit reservation of a right not to be bound (in fact, the handwritten agreement said the opposite) and the executive had partially performed the contract. The third factor was about whether all of the terms of the alleged contract were agreed upon. On that point, the agreement, although it may have lacked some details, addressed all of the essentials for a binding contract.

The final factor is whether the agreement was a type of contract that is usually committed to writing in a formal manner. When millions are at stake, as was the case here, it may be unusual to seal the deal with a handwritten document, in outline form, and drafted on the spot by one of the principals without benefit of legal counsel.  The agreement was not much to look at, barely surpassing in formality the proverbial agreement scribbled on a cocktail napkin. Still, that it was unorthodox did not mean that the method was unprecedented. In the end, this factor, balanced against the other three, was not enough to discard the agreement and deprive the departed executive of the benefits of his bargain.

Written contracts, regardless of length, will be enforced in New Jersey provided sufficient detail is recited.  If you have a contract issue that needs review and analysis, contact Fredrick P. Niemann, Esq. toll-free at (888) 800-7442 or e-mail him at fniemann@hnlawfirm.com.  He has prepared, reviewed and advised clients on hundreds if not thousands of New Jersey and Interstate contracts.  For further information, go to http://www.youtube.com/user/NJBusinessLaw#p/search/0/zQRtR4wnmHA to learn more.

By: Fredrick P. Niemann, Esq. a NJ Medicaid Attorney
         
Although the Deficit Reduction Act of 2005 tightens Medicaid eligibility in New Jersey, Medicaid continues to be the primary program to avoid impoverishment due to long-term care costs.  New Jersey Medicaid can fund long-term care in a nursing home, assisted-living facility or private residence.

Because Medicaid eligibility rules often are replete with traps, Medicaid planning should be attempted only with expert guidance.  For example, filing a Medicaid application too early can trigger expensive penalties that wouldn’t arise if the application were timed properly.

To qualify for Medicaid long term care, you must demonstrate medical eligibility and have minimal resources and income.   Resource and income limits vary depending on living arrangements and care needs.  For instance, vacation homes, gifts, Social Security and security deposits always are countable.

When one spouse applies for Medicaid to fund long-term care, the resources, savings and assets of both spouses are counted against eligibility. However, there are some exemptions for the community spouse. Spousal allowances are modest and a community spouse will face a grim financial future without effective Medicaid planning.

Early planning can generate the greatest savings, but it’s never too late – even if a loved one already has entered a facility.  Planning can help maximize the community spouse’s assets and income, convert resources into exempt income, and minimize gift penalties.  These strategies may be employed individually or jointly.

Maximize Allowance

To qualify for the maximum allowance, couples worth under $220,000 can often use properly timed loans and other techniques. 

Medicaid applicants must apply their income toward long-term care costs.  Because couples often rely on both spouses’ income to meet normal living expenses, a community spouse can suffer severe hardship if he or she loses access to her spouse’s pension and Social Security.  Fortunately, in many cases, couples can restructure finances and housing costs to dramatically increase the community spouses’ income allowance.

Once an individual qualifies for Medicaid, only the modest Medicaid resource limits will be available to supplement the basic needs Medicaid covers.  Therefore, it makes sense for families to buy items they will need with resources the family must spend down to qualify for Medicaid.  Rather than spend the community spouse’s resource allowance on clothes, the community spouse can purchase clothes with excess resources that she and her husband must spend down to qualify him or her for Medicaid.  Typical spend-downs include household goods, services, acquisition or improvements to the home and vehicle for the community spouse, travel and Medicaid-qualified prepaid funeral accounts.

If you have any questions with regard to New Jersey Medicaid planning and eligibility, contact Fredrick P. Niemann, Esq.  an experienced New Jersey Medicaid planning attorney toll-free at 888 800-7442 or e-mail him at fniemann@hnlawfirm.com today.

 By: Fredrick P. Niemann, a NJ Accredited Veterans Benefits Attorney

It’s important to learn what the VA considers “Unreimbursed Medical Expenses” – that is, what you and your loved one are paying out of your pockets- also referred to as “UME”. This is a key factor to help you determine if a veteran may qualify for a pension!

UME’s include doctors’ and dentists’ fees, Medicare premiums and copayments, insurance premiums, transportation to the doctor’s office, and the cost of assisted living facilities or in-home caretakers.  But there’s much more-take a look below to see everything that qualifies.

Listing of Possible Medical Expenses: (this is only a partial list)
• Medicare premiums deducted from Social Security
• Supplementary medical insurance (Part B) under Medicare
• Abdominal supports
• Acupuncture service
• Ambulance service
• Anesthetist
• Arch supports
• Artificial limbs
• Back supports
• Braces
• Cardiographs
• Chiropodist
• Chiropractor
• Convalescent home (for medical treatment only)
• Crutches
• Dental services
• Dentures
• Dermatologist
• Eyeglasses
• Food or Beverages described by doctor for treatment of illness
• Gynecologist
• Hearing aid and batteries
• Home health services
• Hospital expenses
• Insulin Treatment
• Insurance Premiums (medical)
• Invalid chair
• Lab tests
• Lip reading lessons (in connection with disability)
• Neurologist
• Nursing services
• Occupational therapist
• Ophthalmologist
• Optician
• Optometrist
• Oral surgery
• Osteopath
• Pediatrician
• Physical examinations
• Physicians
• Physical therapy
• Radium therapy
• Podiatrist
• Prescription and drugs
• Psychiatrist
• Psychoanalyst
• Psychologist
• Psychotherapy
• Radium therapy
• Sacroiliac belt
• Seeing-eye-dog
• Speech therapist
• Splints
• Surgeon
• Telephone/teletype for deaf
• Transportation expenses (20 cents per mile)
• Vaccines
• Vitamins prescribed by doctor
• Wheelchairs
• Whirlpool baths for medical purposes
• X-rays

Note: Most medical expenses must be prescribed by a physician to be deductible from gross income for VA benefit qualification purposes.

Depending on what your income is and what your medical expenses are, you may qualify – even if your gross monthly income seems to be too high.  If you have questions about anything in the list above or aren’t sure if an expense you incur is “unreimbursed” or not, go ahead and call us.

If you’d like us to help you figure out if, and when, to apply, or If you have any questions with regard to Veterans Benefits, contact Fredrick P. Niemann, Esq. an experienced accredited Veterans Benefits attorney toll-free at 888 800-7442 or e-mail him at fniemann@hnlawfirm.com today.

By Fredrick P. Niemann, Esq., a New Jersey Probate Attorney

Recently a New Jersey intestate estate (death without a will or trust) passed under New Jersey law to the surviving spouse.  The decedent owned several joint bank accounts with his wife. The decedent had quite a few debts, including credit card and medical bills.  The question raised is whether non-probate assets are subject to creditor claims or if the estate can be deemed insolvent. 

The answer may surprise you.  Non probate assets are not immune from creditors against an estate of a deceased party to pay debts, taxes, and expenses of administration, if other assets of the estate are insufficient.  A surviving party, P.O.D. payee, or beneficiary who receives payment from a joint-party account after the death of a deceased party shall be responsible to the extent necessary to discharge the claims and debts unpaid by the decedent’s estate.  A proceeding in the Chancery Division of the New Jersey Supreme Court to assert this liability must be commenced no later than 2 years following the death of the decedent.  Sums recovered by the estate representative are to be administered as part of the decedent’s estate. 

If you have any questions regarding New Jersey Probate Law, please contact Fredrick P. Niemann, Esq. today. He can be reached at toll free 732-863-9900 or by email at fneimann@hnlawfirm.com. Mr. Niemann would be more than happy to answer any questions you may have.

By Fredrick P. Niemann, Esq., a New Jersey Estate Planning Lawyer

New Jersey law allows a waiver of right to inherit an estate of a deceased spouse.  A widow’s premarital waiver of an elective share to the Estate of her late husband will however be voided after lawsuits are filed when the underlying premarital contract is found unenforceable. 

Often there are conflicts between a step-parent and the children of the deceased parent.  The issues involve the enforceability of the steps-parents’ rights to inherit a portion of his/her late husband’s estate, even though she had waived her rights to the estate before marriage.

Under New Jersey Law, because of the requirements of N.J.S.A. 3B:8-10 and N.J.S.A. 37:2-30, if a premarital agreement cannot be enforced then a waiver of rights is unenforceable.

Fredrick P. Niemann, Esq. of Hanlon Niemann, a central New Jersey law firm commented that a married person needs to exercise extreme caution and adherence to both form and substance who contemplate second and/or successive marriages and who want to protect their estate for the benefit of their children.  Mr. Niemann cautions that without a carefully prepared pre-marital agreement, “Older, financially successful men and women must be aware of the significant, almost enormous risks to them should the marriage fail.  By consulting with a qualified New Jersey Estate Planning attorney, the individual can take meaningful steps to protect their life’s savings for the benefit of all who are intended to receive it.”

If you have any questions regarding Premarital Agreements and New Jersey Estate Planning, contact Fredrick P. Niemann, Esq. toll-free at (888) 800-7442 or e-mail him at fniemann@hnlawfirm.com.  He will be happy to assist you.  For more information, go to http://www.youtube.com/user/NJElderLawCenter#p/search/0/8be14yDEeJc to learn more.

By Fredrick P. Niemann, Esq. a New Jersey Contract attorney

Disputes often arise within the construction process. Sometimes contractors and subcontractors provide services that the owner either deems to be insufficient or not what they agreed upon. Other times, an owner will refuse to pay a contractor because they simply do not have the money. Whatever the reason, the construction forum provides numerous disputes between parties that need to be settled.  While negotiations and settlements between the parties are often favorable, sometimes parties simply can’t agree. In these cases, the dispute is brought to the New Jersey Courts to figure out the proper course of action. The Courts offer a solution and finality to the dispute.

One recent dispute involved construction by plaintiff, a construction company, on the hotel of the defendant to help make the hotel more adequately able to handle inclement weather. After plaintiff completed the construction, they sought payment for repairing the storm drains and weatherproofing the rooms. Defendant refused to pay, claiming that the work was improper, insufficient, and overall not what they agreed to. The trial court, citing the fact that the defendant offered no expert testimony to show that plaintiff’s methods were improper, ruled for the plaintiff and awarded them the amount agreed to in the contract. Defendant appealed, the New Jersey Appellate Division deferred to the trial court judge, stating that they found no reason to doubt the judge’s findings, stating they were supported by adequate, substantial, and credible evidence.

Construction disputes are frequent and can provide serious headaches. An experienced Construction Law attorney can help negotiate a settlement with the opposing party or defend your case when you encounter an unreasonable adversary. It is important to hire a knowledgeable attorney who is familiar with local construction laws to ensure all your rights are upheld. Please call Fredrick P. Niemann, Esq., a qualified NJ Construction Law Attorney, toll-free at 888-800-7442. He can also be emailed at fniemann@hnlawfirm.com. He would be happy to answers any questions you may have related to New Jersey construction laws.