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.
CONCLUSION
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.
Recent Cases:
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.