In some instances, even after an individual is deemed incapacitated and a guardian is appointed, an application may be subsequently filed by the incapacitated person to either terminate the guardianship or to reduce the scope of the guardianship. Such an action is called a restoration of capacity action and is provided for by Rule 4:86-7 of the N.J. Court Rules. This Court Rule sets forth the precise procedure to be followed for any such action, and further, highlights the court’s commitment to treat an incapacitated person with dignity, respect, and to provide as much autonomy as possible to such an individual.

In general, such an action is commenced by the incapacitated person filing an action to either amend the guardianship, or instead, to terminate it entirely. In support of an action to restore partial or complete capacity, an affidavit or certification must be submitted by a physician, or other licensed individual, who has opined that the previously incapacitated person is either no longer incapacitated or has returned to partial capacity. All potentially interested parties, including the current guardian, family members, or other interested persons, shall be placed on notice of the action, and further, the court may appoint a guardian ad litem to evaluate what is in the best interests of the incapacitated person and to present a report to the Court.

At the hearing for this action, the court can either render judgment that the person remains incapacitated, or there has been a change in capacity which renders them only partially incapacitated. Once such a finding is entered, the Court then has broad discretion to craft any future guardianship arrangements which may be necessary, as well as the scope and extent of any such arrangement(s). The guiding principle remains, however, that the court should grant as much autonomy as possible to the incapacitated individual and to treat them with respect and dignity.

This blog only serves to provide a partial overview of this process which can be complex in nature. If you are considering undertaking this process on behalf of an incapacitated person, then you should review in greater detail the nature and extent of such proceedings with competent counsel.

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If you are considering seeking a guardianship of an individual or have been named as an interested party to such an application, it’s crucial that you understand the types of guardianship that exist in the State of New Jersey. This knowledge will empower you to make informed decisions. In general, there are two main types of guardianship: general guardianship and limited guardianship.

General Guardian

If, after a hearing on the merits, the court finds that an individual is incapacitated as defined by the guardianship statute and cannot govern himself or manage his affairs, the court may appoint a general guardian who shall exercise all rights and powers of the incapacitated person. In essence, the general guardian steps into the shoes of the incapacitated person and may manage all affairs for the incapacitated person. The general guardian shall be required to post a security with the court unless the guardian is relieved from doing so by the court. Once installed as general guardian, the guardian shall make all decisions for his ward in managing the incapacitated individual’s healthcare and financial affairs.

Limited Guardian

Should the court conclude after a hearing that the individual is incapacitated and cannot do some, however, not all of the tasks necessary to care for himself, the court may appoint a limited guardian of the person, a limited guardian of the estate, which relates the financial affairs of the individual, or a limited guardian of both the person and estate. When a court finds that a limited guardianship is appropriate, the tribunal must make specific findings on the record concerning the individual’s capacity. Furthermore, the court must also establish which areas, such as residential, educational, medical, legal, vocational, and financial decision-making, which the incapacitated retains sufficient capacity to manage. The judgment of limited guardianship may either specify the limitation of the authority of the appointed guardian or, alternatively, it can set forth the areas of decision-making that the incapacitated individual retains. In the context of a limited guardianship, the court has substantial discretion to tailor the limited guardianship scope, which best serves to assist the incapacitated individual while allowing them to retain as much autonomy as possible. As such, the scope of a limited guardianship is carefully tailored on a case-by-case basis to best suit the needs of the incapacitated individual.

While this blog discussed the types of guardianship available, the process of obtaining a guardianship is a separate topic that will be discussed in other blogs. As such, if you plan on seeking a guardianship for someone or you are an interested party to such a proceeding, it is always suggested that you consult with competent legal counsel.

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When an individual executes a Will near the end of their lives, or at a time that they are suffering from emotional or physical trauma, a question may arise whether the decedent had sufficient capacity to execute their Last Will and Testament. As such, it is important to evaluate their physical/mental status in consideration of the relevant statutory law and case law which requires that a Will be executed at a time that the decedent had the requisite testamentary capacity to execute this document.

In general, for an individual to have sufficient capacity to execute a Will, they must demonstrate that he/she understands the nature of the property that they possessed, and further, which they intended to convey. In other words, it must be shown that the decedent had an accurate understanding as to the totality of their assets and how they wished to distribute them. Further, it must also be demonstrated that the testator was aware of who the potential heirs of his/her estate were at the time they were drafting their Will. Finally, it must be proven that the decedent understood the legal effect of their Will and how it would distribute their estate.

Should there be a challenge to a decedent’s capacity during a Will contest, the testimony of both medical experts and fact witnesses may be presented to either prove or disprove a decedent’s capacity. Further, medical records may often become relevant in making such an assessment, especially those which are near the time the Will was executed. Finally, testimony from the witness who were present when the decedent executed his/her Will, as well as the attorney who was present, will be crucial to deciding as to testamentary capacity. Aside from witness testimony, should a Will contain non-sensical provisions, or ones that are drastically different from the decedent’s previously expressed desires, these provisions may likewise support a finding that the decedent lacked capacity on the date the Will was signed. Like all matters which require the presentation of complex evidence, it is strongly suggested that competent counsel be retained to guide you through the litigation process.

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During a Will contest, a party challenging a Will may assert that the Will was the product undue influence being exerted over the decedent by the party who benefited by the disputed Will. The question arises: What is what is undue influence and how can it be demonstrated? This blog will discuss the general definition of undue influence elaborate on the proof required to demonstrate its presence.

Appellate courts have explained that for influence over the decedent to rise to the level of undue influence, it must be demonstrated that such influence destroyed the free agency and will of the person over whom it was exerted upon. This type of coercion may be mental, moral, or physical, or a combination of all three. The influence must rise to a level to preempt the testator from following the dictates of his or her own mind and will, and instead, accepting the domination and influence of another. Typically, to establish the existence of undue influence, there must be shown a weakness of mind, and that the desire of the testator was distorted by the imposition of a stronger dominating influence. The mere fact that a party may give care and assistance to the testator does not in itself indicate evidence of undue influence so as to destroy the free will of a testator. Instead, it must be demonstrated that the influence destroyed the free agency and will of the person over whom it is exerted, and instead, the Will reflected the desires of the person who exerted the influence.

Typically, undue influence is demonstrated through witness testimony, and perhaps relevant documents, which evidence that another individual exercised mental, moral, or physical exertion, or all three, over the decedent. Also, if there are drastic changes in the decedent’s estate documents which directly benefit the alleged wrongdoer this may be additional proof that undue influence was exercised over the decedent. Typically, however, the proof of undue influence during a Will contest is comprised of both witness testimony, as well as documentary evidence which demonstrates the exercise of this unlawful influence. The presentation of this testimony can be complex and must be carefully planned. As such, if you are seeking to challenge a Will based upon an allegation of undue influence it is strongly suggested that competent counsel be retained in order to properly present this complex evidence to the court.

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In the business world, a company might have information, a process, a technique, or a design that they consider to be a trade secret. The question is whether the aforementioned constitutes a protectable trade secret under NJ Law. The New Jersey Trade Secrets Act defines what may be considered a protectible trade secret. Under the Act, a trade secret is defined as “information, held by one or more people, without regard to form, including a formula, pattern, business data compilation, program, device, method, technique, design, diagram, drawing, invention, plan, procedure, prototype, or process, that:

1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (N.J.S.A. 56:15-2)

Upon reviewing the statute, it is evident that a trade secret can arise in numerous scenarios and in different industries. An essential component in determining the protectible nature of the secret, however, always involves whether reasonable efforts were made by the holder of the purported secret to maintain its secrecy and to prevent its disclosure. Despite these efforts, at times, secrets are stolen or misappropriated by a current or former employee or even a competitor. Should that occur, the question that arises is what relief the owner of the secret may be entitled to in court.

The New Jersey Trade Secret Act also addresses when the holder of the secret may be entitled to relief by a court. Typically, the unlawful taking of a trade secret is referred to as the misappropriation of the trade secret. The Act provides that “Misappropriation” means:

1. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means, or
2. Disclosure or use of a trade secret of another without express or implied consent of the trade secret owner by a person who:
   • used improper means to acquire knowledge of the trade secret, or
   • at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was derived or acquired through improper means; or
   • before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired through improper means.

Should the holder of the trade secret be able to establish any of the elements listed above, it would be entitled to commence an action in court to prevent the use and dissemination of the secret. In such action, the holder will seek an injunction to prevent the use and dissemination of the secret, and further, may seek an award of damages against the wrongdoer, which may include the disgorgement of any profits this party made by using the trade secret, compensatory damages, and potentially, an award of punitive damages and counsel fees. In other words, this Act aims to protect trade secrets and define the remedies a holder may seek against a wrongdoer.

If your company believes that it holds a trade secret that was unlawfully misappropriated, it is suggested that you consult with competent counsel immediately. In such instances, swift action should be taken to minimize any damages and, further, to punish the wrongdoer.

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In a free-market economy, competitors can generally pursue prospective clients in any fashion as long as the pursuit does not run afoul of the law. At times, however, this pursuit could give rise to a claim of tortious interference with a prospective economic advantage should certain factors be present. Under New Jersey law, a claim for tortious interference with a prospective economic advantage may exist if the aggrieved party demonstrates four elements:

• a protectable interest in the economic relationship,
• malice (which is the offending party’s intentional interference without justification),
• a reasonable likelihood that the interference has caused the loss of a prospective economic advantage to the aggrieved company, and
• resulting damages which are demonstrable.

In order to prove a claim for tortious interference with a prospective economic advantage, the aggrieved party must show that it had a reasonable expectation of economic benefit that was lost as a direct result of the offending company’s malicious interference, and further, that it suffered an ascertainable monetary loss. The malice recited by the relevant law requires the intentional infliction of harm without justification or excuse. In this case-by-case analysis, it must be demonstrated that the offending party’s conduct was both injurious and transgressive of generally accepted standards of common morality or law to be considered unlawful. Mere aggressive competition for a potential client would not suffice, but instead, evidence must be presented of an unlawful action whereby the only intent was to harm its competitor in an attempt to obtain an advantage.

The prosecution of a claim for tortious interference with a prospective economic advantage is often complex. Thus, these claims should be carefully vetted with counsel before filing suit. Moreover, even if the conduct was unlawful or inappropriate, a plaintiff must present proof of the economic loss, which may be difficult to establish. Should all factors be present, however, these claims may be a powerful tool to punish competitors whose conduct runs afoul of generally accepted standards and morality in the marketplace.

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While everyone is undoubtedly aware that an employee is not lawfully permitted to steal from his/her employer, the next logical question concerns what specifically are an employee’s legal obligations during their course of employment. In general, in New Jersey, an employee has a duty in the course of their employment to not act contrary to an employer’s interest, to not compete with an employer, and, further, to not assist an employer’s competitor. This duty exists whether there is a written employment agreement or the employee is solely “at will.” This duty of loyalty goes beyond refraining from privately soliciting the employer’s customers while still employed, but also prohibits the employee from taking affirmative steps to injure the employer’s business. This duty exists throughout the term of employment and, perhaps, thereafter, if the employee has a written employment contract.

Should an employee decide to leave their current employment, the applicable New Jersey law explains that employees have the right to plan and prepare for future employment, provided that they do not solicit customers and act in direct competition with their employer’s business while they are still employed. Merely planning their future employment without more is not a breach of an employee’s duty of loyalty and good faith to his employer. However, the agreement must be carefully reviewed as to any post-employment restrictions should the employee have an employment contract with their employer. Also, the employee must refrain from removing confidential or proprietary information that belongs to their employer for use in their future employment. Should they do so, they may be subject to a lawsuit from their previous employer.

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Now that you have successfully filed your construction lien claim, whether the lien involves a commercial or residential property, the next logical question is what must be done to enforce the construction lien and to receive payment for the materials and/or services that were provided. The next step in this process is called foreclosing upon the lien claim and is accomplished by either filing a state court action, or commencing an arbitration depending upon what the construction agreement provides. Obviously, in the absence of a signed construction agreement, or similar invoice for materials and/or services signed by the parties, a construction lien claim could not be filed. As such, we must first look to the terms of the contractual documents to determine the appropriate forum to commence an action to foreclose upon a lien.

Most contracts contain language which specify the venue and/or jurisdiction where disputes concerning the contract must be resolved. Provided the agreement contains such a forum clause then it must be followed. In the absence of a forum clause the appropriate venue to file an action to foreclose upon a lien claim is in the county where the property against which the lien claim was filed is located. Like all civil actions, a complaint would be filed against the owners of the property seeking a monetary judgment for the amount of materials and/or services that were provided to the owners, and further, a claim to foreclose upon the lien which would seek to sell the property during a sheriff’s sale.

During a lawsuit to foreclose upon a construction lien, the owners may claim that the contractor/vendor is not entitled to payment for the materials and services that were provided due to certain defenses which they might assert. As such, the lawsuit would proceed in a typical fashion with the exchange of discovery, depositions, and other pre-trial motions which might be filed by either side. Should the parties settle the dispute, then in that event, the matter would be concluded and the lien would discharged upon receipt of payment. Should the dispute not settle and the matter proceeds to trial, the contractor will seek a judgement against the owners, and further, will seek to have the subject property sold during a sheriff’s sale should the owners not pay for any judgment which they might obtain. Should that occur, the subject property can be sold during a sheriff’s sale and any equity that remains after priority lien holders are paid may be transferred to the vendor/contractor to satisfy the judgement in whole or part.

This article is intended only to scratch the surface of this process, and thus, merely provides the basics of what a vendor/contractor would do after filing a lien claim. Obviously, consulting with competent counsel would be the suggested approach after filing the lien claim and prior to commencing any action to determine the best course of action.

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In most civil litigation in the state of New Jersey, the time to file a cause of action ranges from approximately one year to six years, with some exceptions. Regarding filing a Will Contest, however, that time frame is dramatically shorter. It is crucial that if you are considering contesting a Will, or if you might be responsible for defending a Will, that you are aware of this short statute of limitations. The time frame to commence a Will contest is codified by NJ Court Rules 4:85-1 and 4:85-2.

Pursuant to Court Rule 4:85-1, the time period to commence an action to contest the validity of a Will is within four months after probate of the Will, or of the grant of letters of appointment of an executor. Should the contestant live outside of New Jersey, however, the time would be extended to within six months after probate of the Will, or of the appointment of an executor. There are some exceptions to this Rule, however, for the purposes of this Blog those dates should be adhered to.

Pursuant to Court Rule 4:85-2, the period set forth under Rule 4:85-1 can be extended. This Rule provides that the period to contest a Will may be extended for a period not exceeding 30 days by order of the court upon showing good cause and the absence of prejudice. Typically, the court will grant this 30-day extension, provided there is even the slightest indication of good cause.

An important consideration under both of these Rules, however, is that the time period does not begin running until the Will is probated and/or an executor is appointed. It must be remembered that the clock does not start to run until the occurrence of one of these events. One other issue, which relates to this statutory time period, is the notification of the probate of a Will that must be given to heirs, family members, spouses, next of kin, or beneficiaries under the Will. Should this notice not be given, or should the notice be late, this can also extend the time period to contest a Will. That issue alone, however, is subject to numerous circumstances which might enlarge the time period to contest a Will which will be explored in another blog.

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