What is the standard for temporary restraints in estate litigation?
At the beginning of estate litigation, it’s not unusual for a party to apply for temporary restraints, usually in the first filing with the court. Temporary restraints are akin to what are more commonly called injunctions, and as the name suggests the relief is temporary pending further review by the court.
The typical case calling for temporary restraints is where a plaintiff is filing an action but wants to keep the other party from causing further harm during the time between the filing of the action and first court date. Without temporary restraints, the opposing party has (at least) the time between the filing of the complaint and court date and may continue whatever conduct it is that caused the suit. Temporary restraints sought in estate litigation generally seek to preserve the status quo, essentially to put everything in amber. These temporary restraints are often continued after the initial court date until the case can be fully heard.
It’s my experience that courts of equity are generally sympathetic to preserving the status quo, which makes good sense to me. While a chancery court is empowered to do equity and is given broad discretion to do so, the actual articulated standard actually sets the bar quite high. If a party, for whatever reason, opposes a request for an order preserving the status quo, the standard can be difficult to meet.
The rule governing temporary restraints in New Jersey – R. 4:52-1 – allows for an application for temporary restraints without notice to the other parties, or with notice. The rule seems to suggest that the standard shifts depending on whether or not the application is without notice to the adverse party: a party is not entitled to “any temporary restraints [ . . . ] unless the defendant has either been given notice of the application or consents thereto or it appears [. . . ] that immediate and irreparable damage will probably result to the plaintiff before notice can be served.” While the standard of irreparable damages is applied by rule only to ex parte proceedings, the case law carries this standard through all applications for temporary restraints.
The leading case articulating the standard relative to temporary restraints is a 1982 New Jersey Supreme Court case called Crowe v. De Gioia. The test actually set forth in Crowe is 3-pronged: a litigant must show that there is a risk of irreparable harm, that the law underlying the complaint is well-settled, and that the litigant is likely to succeed on the merits. Subsequent cases have read the Crowe test to also require a balancing of the relative weight of the harm posed if the relief is denied against the burden on the adverse party if the relief is granted, and additionally that the relief requested is not adverse to public policy.
Notwithstanding customary practice, applications seeking to preserve the status quo – as opposed to ones seeking more extraordinary relief – are not given a lot of special deference under the Crowe standard. (The only prong of the test where the preservation of the status quo is specifically addressed in Crowe is the likelihood of ultimate success on the merits.)
The greatest difficulty is typically meeting the test for irreparable harm. Any injury that can be addressed by monetary damages is not considered irreparable. In estate litigation, we are often seeking to stop a party from raiding the decedent’s assets. Worse, we often know that a judgment for monetary damages will be an empty victory, where the damages will be difficult or impossible to collect. Preparing to articulate irreparable damages is a significant part of preparing any application for temporary restraints, and even where the plaintiff seeks “only” to preserve the status quo, counsel should be prepared to answer each prong of the Crowe standard, including irreparable damages.