Expert Witness Services
Expert Witness Services
The attorneys of Borteck & Czapek, P.C. are frequently called upon to serve as an expert witness in a variety of contested matters.
The following is a list of matters in which Robert D. Borteck, Esq. has rendered expert reports or in which he is currently serving as an expert, and a brief description of the substance of each matter:
Estate of Bathsheba Veghte (April, 2015)
Expert witness matter involving alleged breaches of fiduciary duties by co-executors of estate, including conflicts of interest, inadequate due diligence in connection with preparation, filing and audit of death tax returns as well as timely collection of estate assets.
Marilyn Frankel, et al. v. Larry J. Chasin, et. al. (January, 2012)
Malpractice issues concerning the actions and inactions of a “family attorney.”
Whether attorney and law firm breached the requisite duty of care and/or duty of loyalty to the surviving spouse when it represented both the Sellers (estate and surviving spouse) and the Buyers (various family members of the Decedent) in connection with the sale of a family business, without first obtaining a conflict waiver.
Whether the attorneys’ violations of several Rules of Professional Conduct rose to the level of malpractice.
Sorbello Estates (August, 2010)
Attorney’s malpractice involving:
Failure to properly fund testamentary trusts.
Rosen v. Litwin (July, 2010)
Malpractice in failing to be reasonably alert to and protect his client against undue influence.
Gola v. Sharp (March, 2010)
Malpractice action involving attorney’s advice on domicile and impact of domicile decision on state estate and inheritance taxation.
Making an inappropriate “QTIP election” in connection with the “credit shelter trust” established under a Will and otherwise preparing and filing inaccurate tax returns.
Inaccurately transferring estate property.
Misrepresenting their expertise in estate administration.
Failing to candidly disclose negligent conduct.
Henry A. Scheyer, Jr. v. Harwood Lloyd, LLC and David M. Repetto, Esq. (December, 2009)
Whether attorney and the law firm breached the requisite duty of care to its client (1) in connection with the failure to incorporate material provisions into a settlement that was entered on the record in court pertaining to a certain trust, and (2) in advising former client to delay funding said trust in an attempt to gain leverage in incorporating the omitted material provisions, after the fact, into said settlement.
Eric Dohm – Winkler Estate Matters (September, 2009 and December, 2011)
Malpractice issues concerning failure to properly fund testamentary trusts and improper preparation of federal estate tax returns. Failure to be alert to undue influence/failure to meet with client. Failure to discuss/consider inheritance tax consequences of settlement of Will dispute.
I/M/O the Estate of Selma H. Lederer, Deceased (January, 2008)
Whether an heir at law of a decedent has standing to assert a malpractice claim against the decedent’s estate planning attorney notwithstanding the lack of privity between the lawyer and the heir at law.
Whether an attorney representing an elderly client in connection with her estate planning, including the making of inter vivos transfers and the preparation of a last will and testament, has a duty to be reasonably alert to indications that the client is subject to undue influence and, where indicated, to make a reasonable inquiry and determination in that regard.
Whether a trusts and estates attorney should take reasonable steps to ensure that his client understands the economic impact of proposed changes being made to a long-standing testamentary dispositive arrangement.
Nicholas Korinis v. Edmund V. McCann, Esq. (October, 2006)
Whether a beneficiary under a Will had standing to assert a malpractice claim against the scrivener of said Will notwithstanding the lack of privity between the lawyer and the non-client beneficiary.
Whether attorney was negligent in failing to inquire of his client (decedent) as to the value and title of his assets and advise as to required changes in title that would be necessary to enable the Will that he prepared for the benefit of a specific beneficiary to be capable of disposing or more than a mere fraction of his assets.
Shreeve Estates and Trusts (August, 2005)
Whether attorney was guilty of legal malpractice on the following grounds:
(1) negotiation for the sale of estate real estate with an ongoing client without disclosure of such pre-existing attorney-client relationship to, or authorization from, the beneficiaries of the estate;
(2) failure to direct the fiduciary to re-appraise certain real estate that had been under contract for several years when the terms of the contract would have given the fiduciary the right to cancel the contract or negotiate a higher sales price and/or share in the property’s appreciation;
(3) allowing the fiduciary to expend more than $500,000 beyond the estimated cost of repair and renovation of decedents’ primary residence;
(4) investment in an internet start-up company which was a client of his, without disclosure of such pre-existing attorney-client relationship to, or authorization from, the beneficiaries, which investment became worthless;
(5) charging attorney’s fees for non-legal services performed in his capacity as trustee; and
(6) charging unsubstantiated legal fees in connection with his representation of the estates and trusts.
Estate of Theodore R. Miller (June, 2005)
Whether attorney’s recommendation that the co-executors of the subject estate pay approximately $3,292,000 in federal estate tax nine months after decedent’s death, as opposed to deferring payment of all or a portion of such tax until nine months after the death of the surviving spouse, nearly five years later, constituted legal malpractice.
Estate of Patricia Albanese (February, 2005)
Whether counsel to executrix should have advised of alternatives to the use of IRA funds to pay estate taxes, avoiding acceleration of income tax consequences.
Whether duties of counsel to executrix extended to beneficiaries of estate.
Rose Manzo –The Manzo and Passarella Security L.L.C. (April, 2003; May, 2003)
Whether the proposed appointment of the guardian of the property of Rose Manzo, as manager of a certain LLCs, would increase the risk that, upon the death of Rose Manzo, the assets of the LLCs would be included in her gross estate for federal estate tax purposes pursuant to Internal Revenue Code (the “Code”) section 2036.
If the Internal Revenue Service were to raise this issue, would it be successful in its contention that the LLCs’ assets should be included in the gross estate of Rose Manzo under section 2036 and/or section 2038 of the Code for federal estate tax purposes.
In the Matter of the Estate of Cory L. Szarko, Deceased (February, 2003)
Whether New Jersey Statutes 3B:22-3 requires that assets constituting a general devise be used for payment of an estate’s expenses before resort to the assets comprising specific devises and/or the income earned on the specifically devised assets.
Whether there would be any “significant adverse estate tax impact” from the use of the generally devised assets to the surviving spouse to pay the estate’s expenses.
Whether the provisions of decedent’s Last Will and Testament indicated that the “dominant intent” of the testatrix was to absolve the assets specifically devised to her daughters from the payment of administration expenses and estate taxes.
When are specifically devised assets to be paid to the beneficiaries and when should the specifically devised assets under the Testatrix’s will have been distributed to the plaintiff in this matter.
Whether the executor’s actions in the administration of the subject estate were consistent with his fiduciary duties.
Estate of Marie Babson (July, 2002 and June, 2005)
Standing of beneficiary under Will to bring malpractice claim against scrivener.
Duty of attorney to make reasonable inquiry as to whether his client was subject to undue influence in making a purported Will
Failure of attorney to bring estate planning strategies to the attention of his client that would have substantially minimized federal estate taxes.
Analysis of damages.
Callaremi v. Herrmann et al and Fiamingo v. Ginsberg (October, 2001)
Validity of a certain assignment of stock in an automobile dealership from a testamentary trust.
Whether the retention of an attorney who holds herself out as an expert in estate planning and administration, pursuant to the recommendation of a general legal practitioner, which expert develops and implements a particular estate plan absolves, the general practitioner from liability for legal malpractice in the estate planning and administration process.
Judith A. Greene Trust Under Trust Agreement Dated December 29, 1992 and Robert George Greene Trust Under Trust Agreement Dated December 29, 1992 (April, 2001)
Whether a New Jersey court would likely reform the referenced trusts so as to eliminate certain powers conferred upon the trustees as a result of scrivener’s error.
Assuming that a New Jersey court would grant reformation of the trusts, whether the Internal Revenue Service (the “Service”) would be bound by or otherwise ultimately respect the reformed trust agreements for federal transfer tax purposes.
Office of Attorney Ethics v. Witman and Office of Attorney Ethics v. Dana A. Bennett (February, 2001)
Whether an individual can possess the requisite testamentary capacity to execute a valid last will and testament at a time when circumstances indicate that such individual may have lacked the requisite capacity during the immediate weeks both before and after the date of execution.
Testamentary capacity to execute a will is measured as of the time of execution of the instrument. Prior or subsequent lack of capacity, even if proximate to the time of execution, does not necessarily vitiate testamentary capacity that existed at the time of execution.