UNDUE INFLUENCE IN WILL CONTESTS
Claims seeking to set aside a will based on undue influence have become more prevalent over the last few years as the economy weakens and as more baby boomers reach the fragility of old age. Opportunities for children or others to take control of a senior’s finances often leads to temptations that are too often acted upon to the detriment of the intended heirs and beneficiaries.
Undue influence has been defined by the courts (in the context of will contests) as that sort of influence which results in the destruction of the free agency, that is the free will and judgment, of the person over whom it is exerted. In re Hale’s Will, 21 NJ 284 (1956). It has been found to exist where the testator yields to the will of another merely for the sake of peace or, in other words, where a testator is mentally or morally coerced into doing something contrary to his own volition. It amounts to mental, moral or physical coercion which constrains a person to do what is contrary to his own wishes. 5 N.J. Practice Clapp, Wills & Administration (3 ed. 1982), § 62.
The New Jersey Supreme Court has defined “undue influence” as “‘mental, moral or physical’ exertion which has destroyed the ‘free agency of a testator’ by preventing the testator ‘from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First Nat. State Bank, 87 N.J. 163 at 176 (quoting In re Neuman, 133 N.J.Eq. 532, 534 (E. & A. 1943). The Appellate Court in In re Liebl, 260 N.J. Super. 519 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993), expanded on the concept of undue influence:
“It must be such as to destroy the testator’s free agency and to constrain him to what he would not otherwise have done in the disposition of his worldly assets. The coercion or domination exercised to influence the testator may be moral, physical, or mental, or all three, but the coercion exerted upon the testator’s mind must be of a degree sufficient to turn the testator from disposing of his property according to his own desires by the substitution of the will of another which he is unable to resist or overcome.”
260 N.J. Super. at 528.
In order to raise a presumption of undue influence, a contestant needs to establish that a confidential relationship between the testator and the beneficiary existed at the time the will was made, and that there are suspicious circumstances surrounding the change in disposition.
Courts have found that a confidential relationship includes all legal and fiduciary relationships as well as relationships where trust and confidence actually exist. A confidential relationship is found “where trust is reposed by reason of the testator’s weakness or dependence…” Haynes, supra. at 176. The essentials of a confidential relationship are a reposed confidence and dominant and controlling position by the beneficiary of the transaction. A confidential relationship exists when circumstances make it certain that the parties do not deal on equal terms, but on one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed, which does not exist where parties deal on terms of equality. See In re Stroming’s Will, 12 N.J.Super. 217 (N.J.Super. A.D. 1951); Croker v. Clegg, 123 N.J. Eq. 332, (N.J.Err. & App. 1938).
The second element required to raise the presumption of undue influence in relation to testamentary bequests is the presence of suspicious circumstances, which circumstances “need be no more then slight.” See Haynes, supra. at 177. See also In re Lehner’s Estate, 70 NJ 434 (1976); In re Catelli’s Will, 361 NJ Super 478 (App Div 2003).
From a practice perspective, Courts will look to the following factors to assist them in finding suspicious circumstances surrounding the preparation and signing of a will and the presence of undue influence:
a. whether the beneficiary was present at the execution of the will;
b. whether the beneficiary was present when the testator expressed a desire to make a will;
c. whether the beneficiary recommended the attorney who drafted the will for the testator;
d. whether the beneficiary had knowledge of the contents of the will prior to its execution;
e. whether the beneficiary was involved with speaking to the attorney about the preparation and contents of the will prior to its preparation;
f. whether the beneficiary was involved in securing witnesses to the will;
g. whether the beneficiary was in charge of safekeeping the will subsequent to its execution;
h. whether the beneficiary secreted the will from other beneficiaries;
i. whether the beneficiary isolated the testator from other family members; and
j. whether the beneficiary disparaged other family members to the testator.
SETTING ASIDE INTER VIVOS TRANSFERS BASED ON UNDUE INFLUENCE
There is a growing trend of undue influence that is less frequently written about, but is occurring with increasing frequency. When someone dies, many look to the decedent’s will to determine how the estate is to be distributed. However, the titling of assets trumps the terms of a will. Generally, if assets are titled jointly with a spouse, as an example, then upon one spouse’s demise, that asset passes to the surviving spouse. Similarly, certain assets like life insurance, IRA’s or 401(K) plans have named beneficiaries. The beneficiary designation governs the distribution of such an asset – not the will. Often times, undue influence occurs not with the preparation of a new will, but rather with whom the accounts are titled, or how the beneficiary designation forms alter the intent of the testator or testatrix.
Joint accounts are afforded statutory protection and the courts will respect the disposition of a joint account to the surviving joint tenant so long as there is a finding of donative intent, delivery and relinquishment of control. However, if there is clear and convincing proof that a decedent did not intend for the surviving tenant to retain the property, the transfer may be set aside. In other words, the survivorship aspect of such accounts remains open to attack based upon equitable grounds such as fraud, duress, undue influence and mistake, which are matters that go to the true intent of the depositor.
Where a grantor is dependent upon a grantee and makes an improvident inter vivos transfer, stripping himself of substantially all of his assets, a presumption of undue influence arises and the gift will be declared invalid unless the donor has had the benefit of competent and disinterested counsel and it is shown that he understood and fully intended the consequences of the gift. A presumption of undue influence arises in connection with transactions inter vivos where a confidential relationship exists between the grantor and the grantee. The burden rests on the grantee to prove not only that no undue influence or deception was practiced, that all was fair, open and voluntary, but that the transaction was well understood. The purpose of this presumption is to afford protection against the consequences of voluntary action by the grantor induced by the confidential relationship, the effect of which upon the grantor’s own interest he may only partially understand.
In the area of probate litigation, there are a growing number of cases wherein spouses, children, siblings or friends, through the creation of joint accounts, are frustrating the intentions of a decedent. In analyzing such transfers, the courts have held that once a confidential relationship between decedent and the donee is established, a presumption arises whereby the burden of proof shifts to the donee of such transfers to show, by affirmative proof, that a gift was intended by the decedent. Absent such a showing, the transfer will be set aside.
The statutory provisions governing joint accounts provides that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.” N.J.S. 17:16I-5; Cziger v. Bernstein, 33 N.J. Super. 404 (1955) (courts will respect the disposition of a joint account so long as there is a finding of donative intent, delivery and relinquishment of control); In the Matter of Estate of Del Guercio, 206 N.J. Super. 159, at 162, (N.J. Super. L. 1985) (gifts between spouses have higher protections); Trotta v. Trotta, 103 N.J. Super. 295, (App. Div. 1968); Tucker v. Tucker, 121 N.J. Super. 539 (1972).
Although this result cannot be changed by will, a review of the case law makes it clear that the survivorship aspect of such accounts remains open to attack based “upon equitable grounds such as fraud, duress, undue influence and mistake”, i.e. “matters going to the true intent of the depositor.” Sadofski v. Williams, 60 N.J. 385, 290 A.2d 143 (1972), citing Bauer v. Crummy, 56 N.J. 400 (1970); Ward v. Marine National Bank of Wildwood, N.J., 38 N.J. 132 (1962) (as to defense of “mistake”).
The majority of cases on this subject center around the claim of undue influence. The New Jersey Supreme Court has defined “undue influence” as “‘mental, moral or physical’ exertion which has destroyed the ‘free agency of a testator’ by preventing the testator ‘from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First Nat. State Bank, 87 N.J. 163 at 176 (quoting In re Neuman, 133 N.J.Eq. 532, 534 (E. & A. 1943). See also In re Liebl, 260 N.J. Super. 519 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).
In Haynes, supra. the court also pointed out the different standards used in determining undue influence in the context of inter vivos gifts as compared to a will contest. The Haynes court concluded that “in inter vivos transfer cases, where one is giving away what one can still enjoy, the presumption of undue influence is raised more easily than in cases involving wills. [In inter vivos cases] [a]ll that is needed is a confidential relationship.” Id. at 176. New Jersey law is clear that the presumption of a right of survivorship in inter vivos gifts shifts in instances where a confidential relationship exists. See also In the Matter of the Estate of Penna, 322 N.J. Super. 417 (NJ Super AD 1999); Bronson v. Bronson, 218 N.J. Super. 389 (App. Div. 1987); Pascale v. Pascale, 113 N.J. 20 (1988).
“The nature of a confidential relationship is difficult to define, but encompasses all relationships ‘whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20, 34 (1988), quoting In re Fulper, 99 N.J. Eq. 293 (Prerog. 1926). A confidential relationship “includes not only cases of technical, legal, fiduciary relationship, such as guardian and ward, principal and agent, trustee and cestui que trust, but also all cases where trust and confidence actually exist.” Id. at 134.
A confidential relationship arises where confidence is reposed by reason of weakness or dependence or where the parties occupy relations in which reliance is naturally inspired or in fact exists. The essentials of a confidential relationship are a reposed confidence and dominant and controlling position by the beneficiary of the transaction. A confidential relationship exists when circumstances make it certain that the parties do not deal on equal terms, but on one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed, which does not exist where parties deal on terms of equality. See In re Stroming’s Will, 12 N.J.Super. 217 (N.J.Super. A.D. 1951); Croker v. Clegg, 123 N.J. Eq. 332, (N.J.Err. & App. 1938).
“[T]he person in whom the confidence is reposed and who has acquired an advantage, is required to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.” In re Dodge, 50 N.J. 192 (1967) quoting In re Fulper’s Estate, 99 N.J. Eq. 293, 302 (Prerog. Ct. 1926). See also Haydock v. Haydock, 34 N.J.Eq. 570, 575 (E. & A. 1881) (“the influence which is undue in cases of gifts inter vivos, is very different from that which is required to set aside a will”). See also Seylaz v. Bennett, 5 N.J. 168 (1950); Slack v. Rees, 66 N.J. Eq. 447 (E & A 1905).
In Bronson, supra., an aged and ill mother’s transfer of substantially all her assets into joint accounts with her son, upon whom she relied for transportation and daily care, raised a presumption of undue influence. The mother became seriously ill and moved in with her son in May of 1985. Prior to moving in with her son, she had a Will naming both of her sons as equal beneficiaries. At such time, she also had approximately $25,000 held in joint accounts. At her death in November of 1985, she had in excess of $200,000 titled in joint name with the son with whom she was living. The court determined that the burden was on said son to show that his mother understood and desired all her assets to pass directly to him rather than under her will. The Appellate Court in Bronson determined that sufficient evidence existed for a finding that a confidential relationship existed and, accordingly, held that the son had the burden of proving that his mother intended to make the gifts to him through the transfers into joint name and that his mother acted without undue influence.
The principles governing an inter vivos undue influence case are clearly laid out in In re Dodge, 50 NJ 192 (1967):
“[T]he common law has always imposed a heavy burden of proof in most instances of claimed inter vivos gifts, even where the donor is not shown to have been mentally incompetent at the time of the transaction. The principle has been expressed frequently that “in all transactions between persons occupying relations, whether legal, natural, or conventional in their origin, in which confidence is naturally inspired, is presumed, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.” In re Fulper’s Estate, 99 N.J.Eq. 293, 302 (Prerog. Ct. 1926).
In the application of this rule it is not necessary that the donee occupy such a dominant position toward the donor as to create an inference that the donor was unable to assert his will in opposition to that of the donee. As Chief Justice Gummere observed in Slack v. Rees, 66 N.J.Eq. 447, 449 (E. & A. 1904), the doctrine has a much broader sweep. “Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee, as it is to afford him protection against the consequences of voluntary action on his part induced by the existence of the relationship between them, the effect of which upon his own interests he may only partially understand or appreciate.” In our judgment, whenever it appears that the relations between the parties to an inter vivos gift are of such character that in reasonable probability they do not deal with each other on terms of equality…equity should regard it as voidable at the instance of the donor or his representatives. In such a situation the donee must show by explicit and convincing evidence that the donor intended to make a present gift and unmistakably intended to relinquish permanently the ownership of the subject of the give. And where death or incompetency of the donor has intervened between the alleged gift and the making of the claim, which generally facilitates the making of false and non-meritorious claims, the common law has long recognized a particular need for compliance with the burden of proof: …”
50 N.J. at 227-228, 234 A.2d 65.
The court reaffirmed these principles in Pascale v. Pascale, 216 N.J. Super. 133, (App. Div. 1987), certif. granted, 108 N.J. 183 (1987). In Pascale, the court held that “[w]e are convinced that in the present day it is equitable and just to require only that it be proven that the donor has reposed such trust in the handling of financial and legal affairs in the donee that a confidential relationship exists. Once this has been established the donee must carry the burden of affirmatively demonstrating that there was no deception or undue influence and that all was open, fair and completely understood. 216 N.J. Super. at 140.
Thus, despite the statutory provisions of N.J.S. 17:16I-5, the courts will entertain actions to set aside an inter vivos transfer of individual assets into joint accounts based on grounds of undue influence. Through proof of a confidential relationship between donor and donee, the burden shifts to the donee to show that a gift by the donor was intended. In these cases, a potential litigant should seek experienced counsel in dealing with such matters to ensure that their rights are protected.
In an effort to avoid probate litigation, estate planning attorneys should seek to implement an estate plan that is tax efficient, provides for spouse and/or children adequately, both in terms of timing and amounts in hopes that the plan promotes harmony. In the event that a family member or spouse is to be cut out, care should be taken to document the testator’s intent so that a Court can read into the reasoning behind the omission. Additionally, attention should be given to the titling of assets so that there is clarity as to what assets are to pass by Operation of Law as opposed to being distributed through the probate estate under the will. Finally, in the event of a subsequent marriage, a prenuptial agreement should be implemented that deals specifically with the elective share claim, or the waiver of said claim, such that the parties document to what extent, if any, they are to share in their respective spouse’s estate. In the absence of the above, the likelihood of probate litigation increases dramatically.
Inter Vivos Transfers – Joint Account Set Aside in Light of Confidential Relationship and Undue Influence
Henry Mangarelli, Jr., Individually and on Behalf of the Estate of Henry A. Mangarelli v. Ruth E. Snyder, 2012 N.J. Super. Unpub. ____ (Docket No.: A-4577-10T4) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Law Division, Passaic County. Before Judges Parrillo and Grall.
Defendant appeals from the trial Court’s entry of a judgment against her in the amount of $176,959.98 finding that she exerted undue influence inducing her father, Henry, to establish and fund a joint account with her prior to his death contrary to the terms of his Will which named his son, the Plaintiff herein, as sole beneficiary.
Henry died on January 29, 2008 at the age of 90. He lived independently and managed his affairs until 2004, when he exhibited signs of degeneration such as loss of the sense of time and the inability to recall where he placed his personal belongings. In January of 2005, Henry was hospitalized. Plaintiff, Henry’s son, visited Henry in the hospital at a time when Henry gave him several things for safekeeping, including $11,000 consisting of cash and two checks that he had received after withdrawing funds from his accounts. Henry endorsed the checks and Plaintiff deposited the checks into his own account, and put the cash in his safe. After Henry was released from the hospital, he did not recall making the withdrawals and did not believe Plaintiff when he reminded him about the checks. Plaintiff returned the monies months later after receiving a letter from Henry’s new estate planning attorney requesting the return of the monies.
By Christmas 2005, Henry and Plaintiff resumed communications but Henry refused to talk about the checks. During 2005, Defendant saw Henry more frequently than she had in the past, she went to the bank with him, and took Decedent to an attorney who had represented her in the past to redo his Will. The attorney advised Henry that they should meet alone, but Henry insisted that Defendant attend the meeting. The attorney subsequently drafted a new Will and Power of Attorney in favor of Defendant. The attorney also explained to Henry how money could pass outside the Will, and it was his understanding that Henry wanted to transfer funds to Defendant by establishing a joint account to ensure that Plaintiff received nothing.
In early 2006, Henry was hospitalized again. After he was discharged, Henry and Defendant went to a financial advisor, opened a joint account with Defendant listing Defendant’s address, and transferred a majority of his assets into the joint account. From June 2005 until Henry’s death in January of 2008, Plaintiff and his family were in regular contact with Henry but never discussed financial matters. Other than a truck, the joint account held with Defendant was the only remaining asset of the Estate.
Plaintiff filed suit claiming that the transfer of Henry’s accounts to the joint account were the product of undue influence. Based on the evidence, the trial Court concluded that the essential elements of a confidential relationship were present, including Henry’s confidence in and dependence on Defendant, who benefited from the transfer. Henry consulted with Defendant’s former attorney and Defendant accompanied Henry to meetings with the attorney and the financial advisor. Defendant was also named as attorney in fact under Henry’s Power of Attorney months before he established the joint account. Based on this evidence the trial Court found that Defendant had a confidential relationship with Henry, and also found that there were suspicious circumstances giving rise to a presumption of undue influence. The Court deemed it suspicious that Henry did not transfer the monies to a joint account with Defendant until more than six months after he signed his new Will naming Defendant as sole beneficiary.
The Court went on to hold that Defendant exerted undue influence and a judgment of $176,959.98 was entered against her. Defendant appealed, claiming that the Court erred in determining that she had a confidential relationship with her father at the time the transfer occurred, which created a presumption of undue influence. The Appellate Division affirmed, finding that the trial Court’s findings were adequately supported by the evidence.
Will Contest – Decedent’s Will and Inter Vivos Transfers Were Set Aside in Light of Defendant’s Confidential Relationship
In the Matter of the Estate of Antoinette Zarrillo, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0108-2008) (Ch. Div. 2012).
Decedent favored one child over another due to the sacrifices made by that child in caring for her. In a detailed discussion of the facts, Judge Koprowski found that the confidential relationship shared between the care-giving child and Decedent overcame Decedent’s free will. The will and inter vivos transfers were therefore set aside.
Antoinette Zarillo died testate on January 19, 2008. Her husband predeceased her in 2000, and they had three sons, Michael, Nicholas and Joseph. Antoinette left a Last Will and Testament dated December 14, 2004 in which she devised her residence to Joseph, and left her residuary estate, 10% to Michael, and 45% to both Nicholas and Joseph, with Joseph named as Executor. This Will was signed the day before Decedent underwent heart surgery. Decedent’s prior wills signed in 2000 and 1978, devised her estate in equal shares to her three children.
After Decedent’s death, Michael filed a caveat. Michael and Nicholas then filed a Complaint seeking to admit the 2000 Will to probate. Joseph counterclaimed, seeking admission of the 2004 Will to probate. In response, Michael and Nicholas amended their complaint seeking to set aside the 2004 Will as the product of undue influence.
Factually, Joseph and his wife, Ivette, lived with Decedent since 2000, and Joseph shared a confidential relationship with Decedent, and was in a dominant position. He was named as power of attorney and was intimately involved with her finances, and her medical and legal decisions. Joseph contacted an attorney in 2004 to prepare a deed transferring Decedent’s house to he and his wife, which Decedent did not sign. Joseph was present at the estate planning meetings with Decedent when the 2004 will was drafted and executed. Joseph also orchestrated inter vivos transfers of Decedent’s assets to he and his wife.
In a thorough factual analysis, the Court held that although Decedent was relatively independent, her health began to decline during the time that the 2004 will and inter vivos transfers were made. Joseph shared a confidential relationship with Decedent, and suspicious circumstances in light of the change in disposition between the 2000 and 2004 wills, creating a presumption of undue influence which Defendant failed to rebut by a preponderance of the evidence. The testimony of the scrivener of the 2004 will was simply not sufficient to overcome the presumption. The 2004 will was set aside, and the 2000 will admitted to probate.
As to the inter vivos transfers orchestrated by Joseph in 2004, the Court found that they were also the product of undue influence in light of the confidential relationship, and Joseph failed to rebut the presumption. The assets were therefore returned to the Estate for distribution in accordance with the terms of the 2000 will.
Will Contest – Lack of Capacity and Undue Influence
In the Matter of the Estate of Vivian Fassett, 2012 N.J. Super. Unpub. ____ (Docket No.: A-3310-10T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges Cuff and Waugh.
Plaintiff appeals from the Chancery Division’s denial of his application seeking to set aside the Last Will and Testament of his sister claiming that she lacked the requisite testamentary capacity and in the alternative, her Will was the product of undue influence.
On his lack of capacity claim, Plaintiff failed to introduce competent medical testimony to support his lack of capacity claim and therefore it was denied. Plaintiff had the burden of proof to overcome the presumption of capacity, which he failed to do. The fact that Decedent passed away within 30 days of executing her Will was certainly not dispositive without additional evidence. Plaintiff had the obligation to produce competent evidence that his sister did not comprehend the nature and scope of her assets, the identity of the persons to receive these assets, the fact that she was executing a will, and that the document would distribute those assets to the persons she had identified as her beneficiaries. Plaintiff failed to carry his burden. Instead, he only submitted unauthenticated documents and information about his sister’s condition at various points in time, which were not dispositive or admissible.
Plaintiff also failed to carry his burden on the issue of undue influence. He failed to establish undue influence by anyone, let alone require a shift of the burden of proof to the proponents of the Will. The parties appeared for a hearing before the Chancery Division, twice, and the Judge’s credibility determinations were entitled to great weight because he had an opportunity to see and hear the witnesses and form an opinion about the credibility of their testimony.
Will Contest –Undue Influence and Accounting Issues
In the Matter of the Estate of John C. Dobish, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: BER-P-004-11) (Ch. Div. 2012).
Decedent’s son, Darin, filed a caveat against admitting the Will of his father, John C. Dobish (the “Decedent”), to probate. In response, Darin’s sister, Dorice, filed a Complaint seeking admission of Decedent’s Will to probate and dismissal of the caveat. Darin counterclaimed, alleging lack of due execution, lack of testamentary capacity, undue influence and certain accounting deficiencies by Dorice while acting as agent under Decedent’s Power of Attorney. The prior Will and Trust, executed in 1998, left Dorice a term of years in Decedent’s residence and distributed the remainder of his Estate equally between Darin and Dorice. In 2009, Decedent executed a new Will, Trust and Deed, wherein Dorice was left his residence, and the remainder of the Estate was distributed equally between Dorice and Darin.
After a trial and hearing testimony of the scrivener and the attorney preparing the Deed transfer benefiting Decedent’s daughter, the Court dismissed the caveat.
On the issue of due execution, the Court found the testimony of the scriveners and the witnesses credible that the documents were duly executed. The Court also failed to find any evidentiary support that Decedent lacked testamentary capacity.
On the issue of undue influence, the Court failed to find a confidential relationship or evidence to support any influence by Dorice. Decedent was motivated by a sense of fairness in leaving Dorice his house, as he had loaned Darin monies over the years that were forgiven at his death. Dorice also assisted Decedent, cooking and cleaning for him. The evidence also revealed that Decedent made his own financial and medical decisions before the estate planning documents were signed in 2009. After he had a stroke, Dorice acted under the Power of Attorney, but this was after the documents were signed. The scriveners also testified that when they met with Decedent he understood the terms of the Will, his intentions were clear, and that he did not appear to be under any influence. Also, Darin was never denied access to Decedent. Based on the foregoing, Darin failed to establish a confidential relationship or the existence of undue influence.
The Court also considered payments made by Dorice under the Power of Attorney, finding that certain payments pertaining to the house were improper as they were made by Dorice directly after Decedent had a stroke, and inured solely to Dorice’s benefit. The Court also went on to award Darin fees on the accounting issues, but denying him fees on the Will contest finding his proof to be weak. Dorice was also awarded modified fees from the Estate.
Will Contest – Undue Influence – Decedent’s Intentions Were Adequately Documented and the Will was Properly Admitted to Probate
In the Matter of the Probate of the Alleged Will of Joan Pennella, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-1958-11T4) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County. Before Judges Reisner, Yannotti and Hoffman.
Defendants appeal from the trial Court’s admission of Decedent’s May 24, 2010 Will to probate.
Decedent’s husband died in 1996 leaving her with a multi-million dollar estate. They had 7 children, Carl, Sam, Carol, Madeline, Joseph, Joan and Roseanne. Beginning in 1996, Decedent made substantial annual gifts to her children and made a will leaving her estate in equal shares to each of them. After Sam had borrowed a substantial amount of money from Decedent and refused to pay it back, and Carol borrowed an expensive necklace and refused to return it, and also mistreated Decedent, she decided to change her estate plan leaving Sam and Carol only small bequests, with the remainder being devised in equal shares to her other five children. These intentions were documented by Decedent’s estate planning attorneys and letters from the Decedent, who also executed three Wills documenting these intentions.
After Decedent’s death, Carl sought to probate Decedent’s 2010 Will and asked for dismissal of the caveat filed by Sam and Carol, who claimed Decedent lacked mental capacity and that the 2010 Will was the product of undue influence. After a trial de novo, the Court admitted the 2010 Will to probate. Relying on the testimony of Decedent’s probate attorneys and Decedent’s daughter, Roseanne, also an attorney, who testified as to Decedent’s strong will and her clear intentions, the Court found that Carl did not share a confidential relationship with Decedent, who made her own decisions, nor were there suspicious circumstances. The documented changes to Decedent’s estate plan were a valid expression of Decedent’s intentions. The Court went on to find that even if a confidential relationship existed, Carl presented sufficient evidence to rebut the presumption undue influence.
On appeal, Sam and Carol argue that the trial Court abused its discretion. The Appellate Division affirmed, finding that there was sufficient evidence to support the Court’s findings of fact.
Will Contest –Undue Influence, Lack of Testamentary Capacity; Forgery
In the Matter of the Estate of Betsy A. Schnitzer, Deceased, 2012 N.J. Super. Unpub. ____ (Docket No.: A-5670-09T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Essex County. Before Judges Yannotti, Espinosa and Guadagno.
Relying on the extensive testimony of Decedent’s estate planning counsel, the New Jersey Appellate Division recently upheld the Chancery Division’s admission of Decedent’s Will and subsequent Codicil to probate despite her son’s allegations of undue influence, lack of capacity and forgery. The matter is instructive on proper planning techniques to defend against an anticipated Will contest.
Betsy Schnitzer (“Decedent”) was married to Morris Schnitzer, an attorney with the firm of Connell, Foley & Geiser, and they had two children, Sandra Stern (“Sandra”) and Stephen Schnitzer (“Stephen”), and several grandchildren. Sandra and Stephen are both attorneys.
On April 19, 1995, Betsy and Morris executed reciprocal Wills in which they left their respective residuary estates upon the second to die in equal shares to Sandra and Stephen. This disposition was consistent until Morris’ death on March 8, 1997, when he died leaving Betsy a multi-million dollar estate.
While initially meeting with the Connell Foley firm to update her estate plan, Betsy decided to retain a new firm, Dewey Ballantine (“DB”), who was recommended by Sandra. It turns out, Sandra’s husband used to be a partner at the firm. John Olivieri (“Olivieri”), of DB, consulted with Betsy who requested that he draft a new Will disinheriting Stephen. Betsy had become angry with Stephen who questioned Betsy’s handling of the administration of Morris’ Estate as Executrix. While Betsy’s feelings towards Stephen were well documented and well known, Olivieri advised against disinheriting Stephen, and Betsy agreed.
On August 18, 1998, Betsy executed a Will (the “1998 Will”) and related trust documents after Olivieri reviewed the documents with her and explained the contents. Olivieri testified that the documents were prepared at Betsy’s request, that he had no doubt that Betsy was mentally competent and capable of executing the documents, and that he had no reason to believe that she was being influenced in making decisions. In the 1998 Will, Betsy named Chase Bank (“Chase”) as executor, made specific bequests of personal property to Stephen and to one of Sandra’s daughters, and left the rest of her personal property to her daughter, Sandra. The remainder of her estate was placed in trust, granting 75% to Sandra and 25% to Stephen, with rights to invade principal.
In September, 1999, Chase, as Co-Trustee of a Trust under Morris’ Will for Betsy’s benefit, filed suit against Betsy who was acting Executrix of the Estate to compel an accounting and distribution from Morris’ Estate to the Trust. Betsy was enraged, blaming Stephen for his meddling in her affairs. Although the litigation was settled in 2002, Betsy harbored resentment against Stephen over the suit.
In June 2003, Betsy again retained DB to perform additional work on her estate plan. At the time, Betsy required assistance with her finances. And in February 2004, Sandra called Olivieri and advised that Betsy wanted to leave 75% of her residuary estate to Sandra and the remainder to Sandra’s children. When Olivieri spoke to Betsy to confirm the change in disposition, Betsy was clear, she confirmed that she wanted Sandra to inherit her entire Estate. She stated she was concerned over Sandra’s finances and wanted to disinherit Stephen. Olivieri once again advised Betsy against disinheriting Stephen but she rejected his advice.
On April 14, 2004, a meeting was held at Betsy’s home for about half an hour. Olivieri was present with his associate and a trust officer from Chase, who acted as the witnesses. Sandra had arrived earlier that day and had breakfast with Betsy. Sandra testified she did not speak with Betsy about her estate plan. Sandra was present for the beginning of the meeting when Betsy executed a change to the Trust naming Sandra as co-trustee with Chase, but left thereafter. After she left, Olivieri discussed with Betsy the requested changes to her estate plan. He brought two sets of documents, one set would keep the division of the residuary the same, 75% to Sandra and 25% to Stephen, and the other disinherited Stephen. Betsy was clear, she wanted to disinherit Stephen. It was something she was thinking about for a long time and she was still angry with him over the litigation. Betsy then executed the 2004 Codicil that disinherited Stephen.
Betsy died on October 1, 2007 and Stephen filed a Complaint seeking to set aside the 1998 Will, the 2004 codicil and related Trust documents, alleging undue influence, lack of capacity and a forgery.
Stephen argued that Sandra had a confidential relationship with Decedent, raising a presumption of undue influence. This was rejected by the Court. While Betsy turned to Sandra for companionship and some assistance, particularly in finding a new attorney to do an estate plan for her, Betsy did not rely on Sandra due to a state of weakness or dependence, nor did Sandra dominate Betsy or have superior knowledge or an over-mastering influence over her. Decedent’s scrivener, Olivieri, testified that Betsy had strong opinions on many issues including investment strategy and the disposition of her estate, and there was no evidence of any influence. The Appellate Division therefore affirmed the lower Court’s dismissal of the action.
* An unbiased scrivener, meeting alone with a testator, who properly documents the testator’s intentions through hand-written notes or a letter from the testator, is the cornerstone to defending against a Will contest.
* A beneficiary, especially one assisting testator with her daily activities, should avoid actual involvement in the preparation and execution of estate planning documents to avoid any inference of undue influence.
Will Contest – Undue Influence, Lack of Capacity
In the Matter of the Estate of Kevin Timothy Dekis, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-1080-10T2) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County. Before Judges Axelrad and Sapp-Peterson.
Decedent’s adult daughter appeals from the lower court’s dismissal of her complaint seeking to set aside decedent’s Will, remove defendant as executrix and remove her as beneficiary of the estate. Defendant was decedent’s long time companion, who co-habited with the decedent for over 20 years until his death in 2007. They purchased 2 homes together as joint tenants with rights of survivorship. In addition, decedent named defendant as beneficiary of his pension plan and life insurance policies. In 2003, decedent underwent surgery due to blockage in his intestine, during which the bulk of his intestine was removed due to an infection, which became the basis for the filing of a malpractice action. Decedent had cancer which was treated with chemotherapy. Despite his illnesses decedent continued to care for himself until his death.
In discovery, defendant detailed her discussions with the decedent over the years regarding the preparation of a Will. In 2006, defendant again discussed the preparation of a Will. Defendant prepared a living will and Will for decedent after obtaining a fill in the blank form online. Defendant testified that she asked decedent the questions so she could enter the information on the form. Decedent initially said he did not want to leave his family anything and that defendant should get everything. Defendant then read a warning from the form that if you leave your family nothing, they may be able to challenge the Will later on. He then decided to leave some specific bequests of personalty to his family, which was typed into the Will. Decedent reminded defendant that he had left savings bonds in his plaintiff’s name, so he left her the “savings bonds in her name” as a bequest. Decedent then named defendant as sole remainder beneficiary. They did not discuss decedent’s assets at the time, including the pending malpractice claim. Decedent executed the Will at a local bank in front of 2 witnesses and a notary on December 28, 2006, and died 19 days later. The majority of his estate is made up of the malpractice settlement proceeds of $700,000.
Plaintiff filed suit seeking to have decedent’s Will set aside as the product of undue influence and claiming decedent lacked testamentary capacity. The lower Court granted defendant summary judgment. The Court found no evidence of a confidential relationship or suspicious circumstances. The Court was not satisfied that decedent was in a position of dependency on defendant, finding that decedent and defendant shared a simple division of labors like many households, where defendant was the computer person. The Court also found that the decedent’s Will was consistent with the disposition of a majority of his assets which passed by operation of law to defendant, and also that decedent was of sound mind.
The Appellate Division affirmed, finding that the lower Court’s decision was amply supported by the facts. The Court also did not find that defendant engaged in the unauthorized practice of law.
Will Contest – Undue Influence, Lack of Capacity – Barred by Prior Settlement
In the Matter of the Estate of Belva Plain, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0048-2011(Ch. Div. 2011). Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.
Plaintiff, decedent’s son, filed a Complaint seeking to set aside decedent’s Last Will and Testament based on undue influence and lack of testamentary capacity. Decedent’s Will dated March 21, 2007 was probated by the Essex County Surrogate on October 12, 2010. In her Will, decedent left her entire estate to her two (2) daughters, excluding her son, the plaintiff.
Plaintiff and decedent had engaged in litigation, whereby restraining orders were filed against plaintiff. They ultimately settled the litigation, with decedent agreeing to provide plaintiff with annual income and plaintiff agreeing not to contest decedent’s Will at her death. The 2007 Will, and 9 prior Wills, excluded plaintiff as a beneficiary. Plaintiff’s complaint only sought to set aside the 2007 Will.
In reviewing the settlement agreement, the Court held that plaintiff had given up any right he may have had to contest the probate of decedent’s Will, which was bolstered by the fact that plaintiff continued to receive annual income since the settlement was reached, and the decedent signed a trust to continue these payments to plaintiff for his life. The fact that decedent did not send letters to plaintiff over the years, which was required by the settlement agreement, was immaterial as plaintiff failed to sue during decedent’s life to assert any contract claims he may have had, and he also received hundreds of thousands of dollars over the years, without objecting to decedent’s failure to write him letters. Plaintiff’s complaint was therefore dismissed on summary judgment, with prejudice.
Will Contest – Undue Influence
In the Matter of the Estate of Rocco S. Stezzi, Sr., 2011 N.J. Super. Unpub. ____ (Docket No.: A-2660-08T1) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County. Before Judges Reisner and Sabatino.
Plaintiff appeals from the lower court’s dismissal of his complaint alleging undue influence by his sister, the sole named residuary beneficiary under their father’s Will. The appeal was unopposed. Plaintiff claimed that his father’s 2006 Will was the product of undue influence, changing the terms of his alleged prior Will of 1984, which named plaintiff as an equal remainder beneficiary. Plaintiff submitted a copy of his mother’s 1984 Will which plaintiff claims had reciprocal provisions.
After her father’s death, plaintiff’s sister submitted decedent’s 2006 Will to probate. Plaintiff filed a Complaint seeking to have the Will and certain beneficiary designations set aside based on lack of capacity and undue influence. Plaintiff was initially represented by counsel, who was then granted leave to withdraw. The Court scheduled a case management conference to discuss what needs to be done to prepare the matter for trial. After a lengthy discussion on the record, the Court decided to summarily dismiss the Complaint. The lower Court found that plaintiff was not prepared for trial and that the legal basis of his contentions were not sufficiently articulated. Plaintiff appealed claiming he was denied due process.
On appeal, the Appellate Division vacated the Court’s dismissal, finding that plaintiff was not given sufficient notice that his Complaint could be dismissed as a sanction if he was unable to proffer sufficient evidentiary support for his claims. The Appellate Division, in vacating the dismissal, also cited the fact that plaintiff was not in violation of any prior Court orders and that no motion for summary judgment had been filed. The matter was remanded for further proceedings.
Will Contest – Undue Influence Timing of Request for Legal Fees in Unsuccessful Will Contest
In the Matter of the Estate of Nancy L. Hermance, Deceased v. Brett Hermance, 2011 N.J. Super. Unpub. ____ (Docket No.: A-0907-10T4) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County. Before Judges Cuff and Simonelli.
In this probate action, defendant appeals from the lower court’s award of attorneys’ fees to his sister, who filed an unsuccessful will contest claiming undue influence. On appeal, defendant claimed that the application for fees was required to be made within twenty days of the entry of final judgment in the matter. In the case, the request for fees was made approximately two months after the entry of final judgment.
The lower court held that an application for fees may be filed within a reasonable time following entry of final judgment and the motion requesting fees in the matter, filed approximately two months after entry of final judgment, was reasonable under the circumstances. This was affirmed on appeal.
Will Contest – Undue Influence – Denial of Legal Fees
In the Matter of the Estate of Edward A. Cantor, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-3819-08T2) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County. Before Judges Cuff, Sapp-Peterson and Simonelli.
Plaintiff, daughter of the Decedent, filed a Complaint claiming that certain family members and business associates of her father unduly influenced him to disinherit the Plaintiff. The lower court found no undue influence, but awarded her attorneys’ fees. On appeal, the Appellate Division affirmed the lower court’s finding that no undue influence occurred, but overturned the award of legal fees to the Plaintiff, as no reasonable cause existed to contest the Decedent’s estate plan.
Decedent died with an Estate of over $90 million. He was survived by his third wife and two children. Plaintiff was estranged from her father for many years due to litigation filed by the Plaintiff pertaining to five properties that Decedent had gifted to her. Her brother, the Defendant herein, tried to dissuade his sister from suing the Decedent, as he would disinherit her. Plaintiff went ahead with the law suit and Decedent indeed disinherited her. Plaintiff won the suit against the Decedent, who was ordered to pay her $1.5 million. Decedent ceased speaking to her, as did her brother.
Plaintiff sued Decedent civilly under the RICO statute, having him arrested. Decedent also kept a list of all the things his daughter did to him over the years, and read it just prior to his death, claiming that he would not change his Will. Decedent executed consecutive Wills in April of 1991, another one several months later, and another Will in September of 1997, all disinheriting his daughter. On June 16, 1999, Decedent executed another Will, naming his son as the sole residuary beneficiary, stating that he made no provision for his daughter. The signing was taped, and Decedent expressed his clear intentions to disinherit her. Decedent’s son had nothing to do with the Will and did not attend the signing.
Plaintiff claims that she reunited with Decedent in 2000. Decedent’s attorney testified that despite some meetings between Decedent and his daughter, Decedent clearly intended to disinherit her. He also testified that Decedent was strong willed until the end and that there were never any signs of influence by anyone over the Decedent. Decedent signed a Codicil in October of 2000 reaffirming his intention to disinherit his daughter. His health was deteriorating but not his mental state, and on April 6, 2001, signed his final Will, again disinheriting his daughter.
Decedent died in 2002 and Plaintiff brought suit. Relying on the strength of the testimony, the contents of Decedent’s Wills, and the fact that Decedent remained strong-willed until the end, still going into work, the lower court held that no undue influence occurred, but awarded fees. On appeal, the appellate court upheld the dismissal of the Complaint but overturned the award of fees, finding Plaintiff had no reasonable cause to contest the Will. Decedent’s intentions were clear. Plaintiff had nothing more than “hope” that the examination of witnesses would uncover some wrongdoing, and that is not enough to satisfy the reasonable cause standard in awarding fees.
Will Contest/Inter Vivos Transfer – Undue Influence
In the Matter of the Estate of Georgia Tsairis, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0070-2009) (Ch. Div. 2011) and Pamela Conry, et al. v. Bazan, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-C-245-08) (Ch. Div. 2011) Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.
These consolidated decisions by the Court addressed the following issues, whether the Deed transfer by decedent on July 21, 2008 was the product of undue influence, whether decedent effectively revoked her May 23, 2000 Will in July, 2008, and whether decedent’s Will of May 23, 2000 was the product of undue influence.
Decedent had 4 children, Peter, Cynthia, Pam and Denise. She died on October 28, 2008. Decedent executed a Last Will and Testament on May 23, 2000 leaving her Nutley residence to her daughter, Cynthia, and Cynthia’s husband, in equal shares. She also executed a Deed transferring her major asset, her Nutley residence, to her daughter, Cynthia, on July 21, 2008. The 2000 Will was drawn by an attorney chosen by Cynthia, in Cynthia’s presence, days before decedent underwent major hear surgery. The 2008 Deed transfer was likewise drafted by an attorney chosen by Cynthia, in Cynthia’s presence.
The remaining siblings filed a Complaint seeking to set aside the Deed transfer and a declaration that the 2000 Will was the product of undue influence. Factually, Peter moved in with decedent in 2000 and took care of her for several years. At the time, Cynthia visited the decedent daily and was in charge of her care. Cynthia brought decedent to her attorney where she signed the 2000 Will. Cynthia held onto the original. Years later, in 2008, decedent met with two different attorneys intending to do a new Will leaving her house to her son, Peter. One of these attorneys asked Cynthia to return decedent’s Will, and she refused. Soon after meeting with these attorneys, decedent left her home and stayed with friends. It was at this time that Cynthia brought decedent to another attorney who drafted a blank Deed, which she signed, leaving her house to Cynthia.
As to the Deed transfer, the Court found that this was the product of undue influence. Cynthia orchestrated the signing by bringing decedent to a new attorney, after decedent had clearly expressed an intention to leave the house to Peter. Cynthia was also appointed as attorney in fact under a Power of Attorney. The Court found a confidential relationship, shifting the burden of proof on undue influence to Cynthia, which she failed to rebut.
The Court then went on to hold that the 2000 Will was not revoked, as decedent did not physically revoke the document in any way, despite her likely intention and despite the fact that Cynthia refused to turn over the original to decedent’s initial attorney.
However, the Court then went on to find that the 2000 Will was the product of undue influence, finding both a confidential relationship and suspicious circumstances, shifting the burden of proof to Cynthia which she failed to rebut. The Court then ordered the decedent’s estate disposed of under intestacy.
Will Contest –Undue Influence, Testamentary Capacity, Award of Legal Fees
In the Matter of the Estate of Blanche T. Riordan, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-3819-08T2) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County. Before Judges Parrillo, Skillman, and Roe.
Plaintiffs, nieces and nephews of the Decedent, appeal from a judgment from the Chancery Division concluding that decedent had testamentary capacity when she signed her will and that the will was not the product of undue influence. The trial court awarded a portion of the legal fees incurred by plaintiffs’ counsel, which was also appealed. The Appellate Division upheld the trial court’s decision, finding adequate proof to sustain their judgment.
Decedent died in June of 2006 at the age of 91. She was survived by her brother and some nieces and nephews. Decedent’s will bequeathed $25,000 to a nephew and the remainder of her estate to her surviving brother’s three children. The will, a holographic will, was drawn by the decedent in the presence of her brother, while her brother’s children, the residuary beneficiaries under the will, waited in another room of decedent’s house. After she drew the will, decedent was brought to her bank, and her niece and nephew acted as witnesses and a notary at the bank notarized the document. Decedent’s nephew, who only received $25,000 under the will, filed a complaint seeking to set it aside.
Plaintiff introduced evidence showing that decedent had fractured her back just before she signed the will, and was confused at times. Decedent’s niece, who witnessed the will and was also a residuary beneficiary, shared a confidential relationship with the decedent. With the assistance of decedent’s close friends, who testified that although decedent was frail, she was strong willed and was able to make her own decisions at the time she made the will. Decedent also visited her home in Florida, by herself, after she made the will out. There was also testimony that decedent adored the residuary beneficiaries. After hearing the testimony, the trial court found that although a confidential relationship existed, the defendants were successful in rebutting this presumption. There was no evidence that defendant overpowered the decedent. In light of the testimony regarding decedent’s health, and the fact that NJ law requires only a very low degree of mental capacity to execute a will, the trial court held that decedent had testamentary capacity at the time she made out the will. The trial court then awarded legal fees, reducing same, in its discretion, based on the ultimate outcome of the case as well as the size of the estate. This opinion was upheld on appeal as the Appellate Division believed that there was sufficient evidence to support the trial court’s conclusions.
Will and Trust Contest – Undue Influence and Lack of Capacity
In the Matter of the Probate of the Alleged Will of Joan Pannella, 2011 N.J. Super. Unpub. ____ (Docket No.: BER-P-376-10) (Ch. Div. 2011) Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.
Decedent was survived by 7 children. She left a Last Will and Testament and Trust Agreement leaving small specific bequests to 2 of these children, with the remainder distributed to the remaining children. Decedent’s son, Carl, filed a Complaint seeking to admit decedent’s Will to probate and to lift the caveat filed by another of decedent’s sons, Sam. In his Complaint, Carl alleges that decedent had executed prior Wills and amendments to her Living Trust which were consistent. Sam, and his sister, Carol, who were left only small bequests filed a counterclaim seeking to set aside the various Wills and Trust agreements based on lack of capacity and undue influence.
The Court took testimony of the decedent’s children and other parties, and admitted the transcripts of the depositions of the scrivener into evidence. On the issue of lack of capacity, Sam’s counsel conceded that the opinion of his medical expert failed to properly address the issue, and therefore this part of the Complaint was denied. The medical expert had opined that decedent lacked capacity, utilizing the wrong legal standard, and also opined that Carl had committed undue influence. This claim was rejected as the wrong legal standard was used.
On the issue of undue influence, the Court cited the testimony of the scrivener and the remaining siblings which were consistent, the decedent was lucid and clear on her intentions. Decedent had sent letters to Sam and her daughter, Carol, regarding the reasons why she was changing her estate plan. Sam had borrowed monies from his parents over the years which he failed to pay back, and the decedent considered the payments as his inheritance. Carol had a fight with her mother because she refused to give decedent back a piece of jewelry, and they had a falling out 2 1/2 years before her death. These stories were corroborated by the testimony of the witnesses. In addition, the testimony failed to support a finding of a confidential relationship between decedent and Carl. Carl was close to his mother, visited her daily, brought her to the attorneys, but the Court was convinced that decedent was strong willed and made her own decisions. The Court therefore dismissed the claim of undue influence, admitting the Will to probate.
Will Contest – Undue Influence – Timing
In the Matter of the Estate of Victoria Ehmer, Deceased, 2011 N.J. Super. Unpub. ____ (Docket No.: A-5041-09T1) (App. Div. 2011). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges Carchman and Graves.
Plaintiff, a son of the decedent, appeals the dismissal of his complaint as untimely. Plaintiff’s underlying complaint sought to set aside decedent’s will, claiming undue influence and lack of testamentary capacity. On appeal, the Appellate Division reversed, holding that plaintiff, who filed a separate action in Hudson County before the expiration of the controlling statute (R. 4:85-1), which was ultimately dismissed, should be allowed to proceed in Ocean County in a complaint filed after the dismissal in Hudson County.
Decedent executed 2 wills, 1 in 2001 and the other in 2004. In the 2001 will, plaintiff, along with his mother, the defendant, and a local church were named as beneficiaries. In the 2004 will, defendant was named as sole beneficiary. Decedent died in July of 2008. In August of 2008, defendant probated decedent’s 2004 will, but did not give notice to plaintiff. In October of 2008, plaintiff’s father attempted to probate the 2001 Will. On November 30, 2008, defendant’s attorney sent a letter to the judge in the Hudson County matter stating that the 2004 will was admitted to probate in Ocean County, forwarding copies to all interested parties including the plaintiff. The Hudson County Chancery judge dismissed the matter by Order entered on December 12, 2008. On March 16, 2009, plaintiff filed a compliant in Ocean County seeking to set aside the 2004 will as the product of undue influence and claiming that decedent lacked testamentary capacity. Defendant filed an answer and counterclaim, but did not raise timeliness as a separate defense.
Approximately one year later, defendant filed a summary judgment motion seeking to bar plaintiff’s claim as untimely under R. 4:85-1, as his complaint was not filed within 4 months of probate of the 2004 will. The trial court agreed, dismissing the matter. Plaintiff appealed.
R. 4:85-1 requires that a complaint to set aside the probate of a will must be filed within 4 months after probate. R. 4:85-1, however, incorporate the provisions of R. 4:50-1, permitting relief outside of the 4 month limitation period under appropriate circumstances. The Appellate Division, citing reference to the trial court’s finding that if the Hudson County matter was transferred instead of dismissed, it would have been within the limitations period, concluded that in the interests of justice, plaintiff’s complaint should be allowed to proceed.