Doctrine of Laches means you are "Out of Time"
In a continuation of our "rosetta stone" of "legalese" to English, Stacey C. Maiden, Esq. of our Estate Planning and Elder Law Department, talks about a recent case that gives life to the dusty doctrine of "laches". Aren't latches what you use to close a door ? Not if you are a lawyer - to us "laches" means "too bad, you are out of time", as in, "that door is now locked".
Defendants often raise the “doctrine of laches” as an affirmative defense in answers, but it is seldom applied by the Court. What exactly is laches? The doctrine of laches is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” (Black’s Law Dictionary). The outcome is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent.
A New Jersey Court recently put the doctrine of laches to use in dismissing claims made by a surviving spouse in an estate matter. In the unpublished case Buie v. Estate of Buie, Chancery Div., Probate Part (Essex Cty.) (Koprowski, J.S.C.), the decedent died testate, leaving his property in Newark to be divided among his six children equally. One week after his death, the plaintiff, his wife, who received non-probate assets of $95,000, left the house in question and returned to South Carolina with co-plaintiff, her son with the decedent.
14 years later [and yes, that is a long time later], the plaintiff/surviving spouse filed an action demanding her intestate share under N.J.S.A. 3B:5-3 as an omitted spouse under 3B:5-15 or an elective share of her husband's estate under 3B:8-1. The court held that the omitted spouse claim was barred by the doctrine of laches since there has been a substantial delay in bringing the action, the plaintiff was the cause of the delay, and defendants have been prejudiced as a result of the delay.
The court also held that plaintiff’s claim under the Elective Share statute was time-barred and that no good cause existed to extend the time to file. Under New Jersey statute, plaintiffs must file claims for elective share within 6 months of the appointment of a personal representative. (N.J.S.A. §3B:8-12):
What is the take-away from this? If you have a legal claim, you have to act on it in a timely manner. While some claims may have to be brought in a specific period because of a statue-of-limitations (like the Elective Share in the example above), all claims must be made in a reasonable time frame from when you knew about the claim. It is very difficult to have to tell a client while they may have the best case in the world, they aren't able to get relief because they didn't act quickly enough. Luckily, the Doctrine of Laches is entirely avoidable if you get legal advise from an attorney at the time that you have a legal question.
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New Jersey accounted for 30% of the most important court rulings on elder law issues in 2011. The crib notes version? Stay within the line and intent of the law to get the results that you want. The courts are supporting Medicaid's ability to create a period of denial because of a transfer of assets to family members. This is in line with one of the core principals of Medicaid eligibility - the state will pay for your long term care if you have a dire financial need, but not if you manufactured that need in the past 5 years by transferring assets to your family. .jpg)
It is a fact of life (or a result of law school) that attorneys tend to speak "legalese". This means that we can take a perfectly well known English word - like "income" - ascribe a very specific meaning to it, and then bandy the word about without you having the benefit of knowing the specific definition we are referring to. So what is "income", or "principal" for that matter, from a trust or estate planning perspective? And what makes up a trust anyway?.jpg)
You have all heard the lawyer jokes ("Why didn't the shark eat the lawyer?" ... "Professional courtesy"). Unfortunately, some of that tarnished reputation comes from our own brethren who assist clients in making the most ridiculous claims. As a humorous, or ironic, look at last year, 
Early January is a great time of year. Everyone is full of enthusiasm for all we are going to accomplish this year. Maybe you even sat down over the weekend and made a list of goals for 2012. One of your 2012 goals may very well be "Get a Will", "Review my Will", of "Find out if I need a Will." Luckily, unlike some other New Year's Resolutions, meeting these goals is easy.
The end of the year is crunch time to finalize what your tax bill will look like come April 15, 2011. 
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Generally speaking, if you transfer a piece of real property subject to a mortgage to another person, that transfer violates the "due on sale" clause in your mortgage, essentially making the mortgage immediately due in full. In the course of buying or selling property, you would pay off the mortgage upon the sale of the property. However, what happens when the property is transferred due to the death of the owner?
I had the pleasure of attending a talk by Newark Mayor Cory Booker to Morris County business folk last week on what opportunities he sees for New Jersey to grow to reclaim its place as one of the greatest states in our country. The 
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"Plan for what we know, not for what we think might happen" Mitchell A. Drossman, national director of wealth planning strategies at U.S. Trust, advised in a recent New Your Times piece "
If you have ever been a fiduciary (executor, trustee, administrator, guardian, attorney-in-fact) you know that being a fiduciary becomes your new part time job. There is a lot of work involved - finding assets, consolidating and investing assets, paying debts, maintaining property, distributing property, paying taxes. On top of the actual work, you are dealing with attorneys, accountants, financial planners, the beneficiaries (who can easily be the most demanding of all) - oh, and your own grief and loss.
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I think that history will compare Steve Jobs with Thomas Edison in the effect that his visionary influence had on the world, and the speed with which it spread. You can thank Steve Jobs for 
