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In re Aiello

A-6826-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

CONTRACTS; ESTATES—An estate beneficiary’s claim that the estate is selling property for less than its true value will not serve to bar the sale if the beneficiary can make a money claim against the selling estate.

A decedent owned three taverns at the time of his death. His executrix entered into a contract for sale of one of them. It was to be sold in “as is condition,” but the sale was contingent upon the transfer of its liquor license. Before the scheduled closing, a beneficiary of the estate sued to enjoin the sale, alleging that the tavern could be sold for more than the executrix had contracted. The beneficiary claimed that the executrix had ignored a higher offer from the son of one of the beneficiaries. The lower court refused to enjoin the sale, finding that there was no irreparable harm because, if the allegation was true, an adjustment could be made in the beneficiaries’ distributions at the time of the final estate accounting.

On appeal, the beneficiary argued that the lower court should not have disposed of the application without an evidentiary hearing. The Appellate Division disagreed. It felt that the complaining beneficiary was not entitled to an injunction because injunctions should only issue “when the party seeking its relief will suffer irreparable harm. ... Here, any harm caused by the alleged conduct of the executrix could be remedied by money damages.” Also, the Court believed the appeal to be premature. It agreed that the lower court was correct when it ruled that the proper course of action to be taken by the beneficiary was to make a timely exception to the final accounting, not to file to enjoin the sale. According to the Appellate Division, “until the entire probate proceeding is complete, there is no certainty that [the complaining beneficiary has] suffered any harm due to the sale to the third party.”


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