                                   RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-1289-18T4

IN THE MATTER OF
KATHLEEN M. HOURIHAN,
An Incapacitated Person.
____________________________

                 Argued October 3, 2019 – Decided August 27, 2020

                 Before Judges Fuentes, Mayer, and Enright.

                 On appeal from the Superior Court of New Jersey,
                 Chancery Division, Monmouth County, Docket No. P-
                 000322-18.

                 Andrew John DeMaio argued the cause for appellant
                 Marianne Phillips, Guardian (Neff Aguilar LLC and
                 John Joseph Marinan, attorneys; Andrew John DeMaio
                 and John Joseph Marinan, on the brief).

                 Respondents have not filed briefs.

PER CURIAM

       In an order of judgment dated December 13, 2013, the Chancery Division,

General Equity Part in the Monmouth County Vicinage declared Kathleen

Hourihan an incapacitated person and appointed her nieces, plaintiff Marianne

Phillips and her sister Kathleen Gunyan, as co-Guardians of her estate. At the
time the court made this decision, Hourihan was seventy-nine years old and had

been diagnosed with Alzheimer's, psychosis, depression, mood disorder, and

coronary heart disease. She resided at an assisted-living facility; she never

married and did not have any children.

      Hourihan's estate was valued at approximately $3,000,000, and her annual

income exceeded her living expenses. Thus, the court ordered plaintiff and

Gunyan each to post a surety bond in the amount of $3,000,000 as a condition

of their guardianship. On May 2, 2014, the court amended the judgment and

appointed plaintiff as sole Guardian due to Gunyan's inability to post the

required $3,000,000 surety bond.

      On February 13, 2008, Hourihan executed a Last Will and Testament

(Will) naming her nieces, plaintiff and Gunyan, and Elizabeth Daly, a sister-in-

law of the nieces, residual heirs of her estate in equal parts. Plaintiff and Gunyan

were designated co-executors of her estate. On September 18, 2018, plaintiff

filed a verified complaint in the Monmouth County Chancery Division, General

Equity Part seeking nunc pro tunc approval of monetary gifts she made from

Hourihan's estate between 2015 and 2017 to the direct beneficiaries of the Will,

including herself; Gunyan; and Daly, and other family members who were only

considered contingent beneficiaries to the Will, including her husband, two


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                                         2
daughters, and son-in-law. The total amount gifted from the Will during this

three-year period was $450,000.

      Plaintiff's complaint came before the court unopposed. After hearing oral

argument and reviewing the record, the General Equity judge granted plaintiff's

application in part and denied it in part. The judge held that pursuant to a power

of attorney, which Hourihan executed before she was declared legally

incapacitated, plaintiff was authorized to gift $14,000 per year to each of the

individuals Hourihan identified as direct beneficiaries in her will. This amount

is the maximum per person yearly tax-free monetary gift permitted by the

Internal Revenue Service (IRS). The judge disallowed the gifts plaintiff made

to individuals who were identified in the Will only as contingent beneficiaries.

      Those individuals who received gifts based on their status as contingent

beneficiaries in Hourihan's Will were ordered to repay to the estate the entire

amount of the gift. Those recipients who were identified in the Will as direct

beneficiaries were ordered to repay the estate the amount of the gifts that

exceeded the yearly maximum per person tax-free gift limit established by the

IRS. The judge granted plaintiff's motion to stay the execution of her order

requiring the repayment of the gifts pending the outcome of this appeal.




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                                        3
      In this appeal, plaintiff argues the General Equity Part erred when it: (1)

restricted her ability to make gifts only to those individuals expressly named as

direct beneficiaries of Hourihan's Will; (2) limited the gifts to those entitled to

receive it to the maximum tax-free gift amount per year established by the IRS;

and (3) required repayment of any gifts made to the direct beneficiaries in excess

of the $14,000 tax-free gift limit established by the IRS. We reject these

arguments and affirm.

                                        I.

      Hourihan was eighty-four years old at the time plaintiff brought this

matter before the General Equity Part. In June 2006, Hourihan signed a power

of attorney appointing plaintiff as her Attorney-in-Fact. The power of attorney

permitted plaintiff to make gifts to the "natural objects of [Hourihan's] bounty,"

so long as "the total gifts to any one individual in any one calendar year [do not]

exceed the federal gift tax annual exclusion in effect at the time of such gift[.]"

On February 13, 2008, Hourihan signed her Will and named Gunyan, plaintiff,

and Daly as direct beneficiaries of her residual estate "in equal shares, share and

share alike." If either of the named beneficiaries were to predecease Hourihan,

the beneficiary's share would pass per stirpes to the beneficiary's heirs.




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                                        4
      Hourihan's investment assets estate consisted of wealth management and

checking accounts held in PNC and Wells Fargo Wealth Management Accounts.

These assets amounted to approximately $3,000,000. In the three years at issue

here, Hourihan's income substantially exceeded her living expenses. Her net

income in 2015 exceeded expenses by $125,042; her income exceeded her

expenses in 2016 by $85,587; and her income exceeded her expenses in 2017 by

$124,072. On September 18, 2018, plaintiff submitted a sworn certification to

the General Equity Part in support of her application for judicial approval of the

gifts. The certification provides, in relevant part:

            For Estate Planning purposes, gifts were made for
            2015-2017, in the amount of $150,000.00 in total, per
            year, with each of the beneficiaries of Kathleen's Estate
            receiving $50,000.00, net, per year, as follows:

            2015
            a) $50,000.00 to Marianne Phillips, by and through her
            designated donees
            b) $50,000.00 to Kathleen Gunyan
            c) $50,000.00 to Elizabeth Daly

            2016
            a) $50,000.00 to Marianne Phillips, by and through
            herself and her husband, Stephen Phillips
            b) $50,000.00 to Kathleen Gunyan
            c) $50,000.00 to Elizabeth Daly

            2017
            a) $50,000.00 to Marianne Phillips, by and through
            herself and her husband, Stephen Phillips

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                                         5
            b) $50,000.00 to Kathleen Gunyan
            c) $50,000.00 to Elizabeth Daly

      These gifts totaled $450,000 over this three-year period. Plaintiff averred

that before she engaged in this gifting campaign, she consulted with Hourihan's

certified public accountant, attorney, and investment advisors. She specifically

noted that she sought the advice of her own attorney who told her she "possessed

the requisite authority to proceed to gift without court approval." She also

emphasized that based on this legal guidance and having "previously been

vested with the authority to gift . . . by my Aunt's Power of Attorney, my reliance

upon this advice was reasonable under the circumstances."

                                        II.

      Whether a court appointed guardian may distribute gifts to a ward's

intended beneficiaries is a question of law. Thus, we are not bound by the trial

court's interpretation of the law and the legal consequences that flow from

established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995). We review the General Equity Part's decision de novo.

Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016).

      The outcome of this appeal turns on the application of N.J.S.A. 3B:12-58,

which provides:



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                                        6
            [i]f the estate is ample to provide for the purposes
            implicit in the distributions authorized by this article, a
            guardian for the estate of an incapacitated person may
            apply to the court for authority to make gifts to charity
            and other objects as the ward might have been expected
            to make.

Also included in this statutory scheme is N.J.S.A. 3B:12-50, which provides:

            [t]he court may exercise, or direct the exercise of, or
            release the powers of appointment of which the ward is
            donee, to renounce interests, to make gifts in trust or
            otherwise, or to change beneficiaries under insurance
            and annuity policies, only if satisfied, after notice and
            hearing, that it is in the best interests of the ward.

      The Supreme Court construed the application of these statutes in In re

Keri, in which Chief Justice Poritz, writing for the Court, explained:

            [i]n short, when managing the estates of incompetent
            persons, including the exercise of the power to make
            gifts, our courts must find that the proposed action is in
            "the best interests of the ward," N.J.S.A. 3B:12-50, and
            that any gifts proposed are such "as the ward might
            have been expected to make," N.J.S.A. 3B:12-58.
            Together, those statutory provisions incorporate and
            reconcile the best interests standard with the common
            law equitable doctrine of substituted judgment. Only
            when the estate contains the resources necessary for the
            benefit of the ward (best interests), may the guardian
            make gifts "in the same manner as the incompetent
            would if able to function at full capacity" (substituted
            judgment).

            [181 N.J. 50, 57-58 (2004) (quoting In re Labis, 314
            N.J. Super. 140, 146 (App. Div. 1998)).]


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                                        7
      To determine whether the statutory mandates of N.J.S.A. 3B:12-50 and

N.J.S.A. 3B:12-58 have been satisfied, our courts have applied the five-factor

test, first articulated by then Chancery Division Judge Samuel Allcorn, Jr., 1 in

In re Trott, 118 N.J. Super. 436, 442-44 (Ch. Div. 1972), and later adopted by

our Supreme Court in Keri, 181 N.J. at 59. That test requires the guardian to

consider the following five factors:

            (1) the mental and physical condition of the
            incompetent are such that the possibility of her
            restoration to competency is virtually nonexistent; (2)
            the assets of the estate of the incompetent remaining
            after the consummation of the proposed gifts are such
            that, in the light of her life expectancy and her present
            condition of health, they are more than adequate to meet
            all of her needs in the style and comfort in which she
            now is (and since the onset of her incompetency has
            been) maintained, giving due consideration to all
            normal contingencies; (3) the donees constitute the
            natural objects of the bounty of the incompetent by any
            standard . . . ; (4) the transfer will benefit and advantage
            the estate of the incompetent by a reduction of death
            taxes; (5) there is no substantial evidence that the
            incompetent, as a reasonably prudent person, would, if
            competent, not make the gifts proposed in order to
            effectuate a saving of death taxes.

            [Keri, 181 N.J. at 59 (alteration in original) (quoting
            Trott, 118 N.J. Super. at 442-44).]


1
  Chief Justice Weintraub assigned Judge Allcorn to the Appellate Division in
1972. Judge Allcorn was Presiding Judge of the Appellate Division from 1977
until he retired in 1982.
                                                                           A-1289-18T4
                                         8
      In Keri, the petitioner sought guardianship of his mother and her estate

and approval of his proposed Medicaid spend-down plan. Id. at 55. This estate

planning technique transfers the assets of the incapacitated person so that she

becomes eligible for Medicaid prior to exhausting all of her monetary resources.

The petitioner's mother in Keri suffered from a form of irreversible dementia.

Id. at 54. When the petitioner sought guardianship, his mother's net worth was

$170,000, which was the approximate value of her home. Id. at 54-55. Her

monthly nursing home expenses were $6,500, while her monthly income was

$1,575.45. Id. at 55.

      Based on this negative disparity between assets and expenses, the

petitioner determined his mother would need $4,924.55 per month to pay for the

nursing home. Ibid. Taking into account the sixteen-month period of Medicaid

ineligibility that would be triggered by the transfer, the petitioner concluded his

mother would need approximately $78,000 to pay her nursing home bills and he

proposed to transfer $46,000 to himself and his brother. Ibid.; see 42 U.S.C §

1396p(c); N.J.A.C. 10:71-4.10(a).      Both the trial court and the Appellate

Division rejected the petitioner's proposal. 181 N.J. at 56.

      The Supreme Court reversed. Id. at 69. Acknowledging the statutory

scheme adopted by the Legislature in N.J.S.A. 3B:12-36 to -64, the Court held:


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                                        9
            There is no reason why an individual, simply because
            he happens to be a ward, should be deprived of the
            privilege of making an intelligent commonsense
            decision in the area of estate planning, and in that way
            forced into favoring the taxing authorities over the best
            interests of his estate.

            [Id. at 58 (quoting Strange v. Powers, 358 Mass. 126,
            133 (1970)).]

      The approach the Court approved in Keri applies with equal force here.

The first Trott criterion is satisfied here because it is indisputable that Hourihan

suffers from Alzheimer's and other neurological impediments which are

irreversible. The second Trott criterion is likewise satisfied because the record

shows Hourihan's assets are more than sufficient to maintain her accustomed

and necessary level of care.

      The third Trott criterion requires that the gifts plaintiff made go to

Hourihan's natural bounty. Keri, 181 N.J. at 59. Gunyan and Daly are named

in Hourihan's Will, and they are her niece and niece-in-law, respectively.

Black's Law Dictionary defines a natural object as "[a] person likely to receive

a portion of another person's estate based on the nature and circumstances of

their relationship." Black's Law Dictionary 1049 (7th ed. 1999). Thus, the gifts

to Gunyan and Daly were to Hourihan's natural bounty.




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                                        10
      However, as the General Equity judge correctly recognized here, the gifts

plaintiff made to her daughters, her son-in-law, and her husband do not satisfy

the third Trott criterion. A plain application of the legal definition of natural

object makes clear that these individuals do not qualify as Hourihan's natural

bounty because they would only receive a share of the estate if plaintiff

predeceased them.

      The fourth Trott criterion is satisfied because the gifts will reduce the

payment of estate taxes upon Hourihan's death. The transfers will save $72,000,

provided Hourihan survives the three-year look back period. N.J.S.A. 54:34-1.

The fifth Trott criterion is also satisfied because there is no substantial evidence

that Hourihan would rather have her assets go to the government in the form of

taxes than her heirs. Indeed, there is a presumption that a reasonable person

would rather leave money to her heirs, than to see it go to the government. Keri,

181 N.J. at 63. Finally, in our view, the General Equity judge correctly relied

on Hourihan's power of attorney to limit plaintiff's gifts to $14,000.

      Affirmed.




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