In the Matter of the Estate of Thomas J. Duffy, Deceased probable intent

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3400-09T1

IN THE MATTER OF THE ESTATE OF THOMAS J. DUFFY, Deceased.

________________________________________________ Argued March 23, 2011 - Decided April 8, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Atlantic County, Docket No. 107266.

Christian M. Scheuerman argued the cause for appellants Dawn Duffy and Kristi C. Duffy (The Benari Law Firm, PC, attorneys; Mr. Scheuerman, on the brief).

Thomas C. Haynes argued the cause for respondent Diane Smolenski.

PER CURIAM At the heart of this appeal is a Will in which the

testator, Thomas Duffy, directed that his "jewelry, personal effects, household goods, works of art and automobiles" were to pass to his friend, Diane Smolenski, and if she predeceased him, the "entire estate" would pass to a veterinarian to care for Thomas's pets. Because Diane did not predecease him, the Will left a gap because it did not provide an express disposition of Thomas's entire estate, which included his real property in

Brigantine. Consequently, Thomas's wife, Dawn, from whom he was separated for many years, and his daughter, Kristi, from whom he was estranged, sought a determination that the real property should pass pursuant to the laws of intestacy. After a nonjury trial, Judge William C. Todd, III, found that Thomas intended to convey his entire estate to Diane in the event she survived him. In deferring to the judge's findings, we affirm.

The trial, which occurred over the course of five days, encompassed numerous issues regarding the validity and enforceability of the Will, the presence of undue influence, and actual ownership of the Brigantine property. Judge Todd provided a lengthy oral opinion in which he concluded that: the Will was valid and enforceable; Thomas's probable intent was to convey his entire estate to Diane if she survived him; and the estate was the owner of the Brigantine property.

In appealing, Dawn and Kristi argue that the case boiled down to whether Thomas made "a mistake" in making his Will, and in so framing the issue, they contend that Diane failed to prove a need for reformation by clear and convincing evidence. Viewing Diane's proofs as insufficient to sustain that burden, they argue that the real property should pass by the laws of intestacy, namely: to Dawn, Thomas's surviving spouse, pursuant

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to N.J.S.A. 3B:5-3(a), or if their lengthy separation1 should disqualify Dawn, then to Kristi, his only child, pursuant to N.J.S.A. 3B:5-4(a).

We agree with Judge Todd's determination that the Will should be viewed as containing a gap. That is, as Diane has argued, the Will, which was not professionally produced, does not literally express a disposition of all parts of the estate in the event Diane survived Thomas. But the Will does suggest that Thomas contemplated a disposition of his entire estate; the Will's third paragraph2 makes a disposition of the "entire estate" and its fifth paragraph3 directs the executor to pay all

1Thomas and Dawn were married in 1977 and separated in the early 1990's. Although they never divorced, Thomas and Dawn remained separated for approximately the last fifteen years of his life.

2The Will is two pages long and contains the following critical paragraphs:

SECOND: I give such jewelry, personal ef- fects, household goods, works of art and automobiles as I may own at the time of my death, together with all policies of insur- ance thereon, to my friend DIANE SMOLENSKI, provided she survives me.

THIRD: In the event that DIANE SMOLENSKI does not survive me, I leave my entire estate to PAT PICONE, my veterinarian, to care for my pets.

3For the paragraph states in full: "I direct that all inheritance, estate, transfer and succession taxes, federal, state and

sake of completeness, subsection (a) of this fifth

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taxes due out of the "residuary estate." Accordingly, the Will's relevant provisions demonstrated that Thomas intended to convey his entire estate, because he referenced the entire estate and directed dispositions from his residuary estate, even though he failed to address what would become of the residuary if Diane survived him.

So viewed, the judge rightly understood that the matter turned on Thomas's probable intent. See, e.g., In re Estate of Burke, 48 N.J. 50, 53 (1966) (holding that the doctrine of probable intent comes into play when a Will contains a gap). In pursuing that question to its logical conclusion, the claim that a testator -- by making a Will -- intended to allow some portion of his estate to pass by way of the intestacy laws is dubious at best. As the Supreme Court has held, "[t]he idea of anyone deliberately purposing to die testate as to a portion of his estate and intestate as to another portion is so unusual in the history of testamentary disposition as to justify almost any construction to escape it." Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 572 (1962) (quoting In re Fabbri's Will, 140 N.E.2d

(continued) foreign, which may be due and payable as a result of my death, together with all interest and penalties thereon, with respect to all property includable for such tax purposes, shall be paid out of the principal of my residuary estate. I authorize my executor to pay such taxes at his absolute discretion" (emphasis added).

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269, 273 (N.Y. 1957)). Here, the evidence fully supported Judge Todd's findings that Thomas was estranged from his wife and daughter; indeed, this is amply demonstrated by the Will itself, which contains no reference to them by name or relationship. In light of these circumstances, it would be extremely odd -- if not preposterous -- to conclude that Thomas deliberately intended to permit the Brigantine property to pass to either Dawn or Kristi by the laws of intestacy.

Having rejected Dawn and Kristi's contention that the Will should be interpreted as written to create a partial intestacy, the judge was required to apply the doctrine of probable intent to ascertain what should become of the Brigantine property. This doctrine has been described in the following way:

[I]n ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances. So far as the situation fairly permits, courts will ascribe to the testator, "those impulses which are common to human nature, and will construe the will so as to effectuate those impulses."

[Fidelity Union Trust Co., supra, 36 N.J. at 564-65 (citations omitted) (quoting Greene v. Schmurak, 39 N.J. Super. 392, 400 (App. Div.), certif. denied, 21 N.J. 469 (1956)); see also In re Branigan, 129 N.J. 324, 332 (1992).]

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The search for the testator's probable intent may reach beyond the four corners of the Will. In re Estate of Payne, 186 N.J. 324, 335 (2006); Engle v. Siegel, 74 N.J. 287, 291 (1977). Accordingly, extrinsic evidence that "furnishes information regarding the circumstances surrounding the testator" may be offered to "aid in ascertaining [the testator's] probable intent," and "[w]here the probable intent is thus made manifest . . ., the court may not refuse to effectuate that intent by indulging in a merely literal reading of the instrument." Wilson v. Flowers, 58 N.J. 250, 260 (1971); see also Payne, supra, 186 N.J. at 335; In re Estate of Flood, 417 N.J. Super. 378, 381 (App. Div. 2010).

In seeking Thomas's probable intent, Judge Todd recognized that the proofs conflicted and he identified the difficulties inherent in resolving the problem. In summarizing his lengthy and thorough oral decision, we first recognize that Judge Todd found Thomas's estrangement from both Dawn and Kristi precluded a finding that he intended their receipt of any part of the estate. Instead, Thomas's close relationship with Diane, together with the fact that references to her in the Will predominate -- she is referred to in the unartful Will as the beneficiary of his personal property and also named as executrix -- and Dawn and Kristi were not mentioned at all, precluded a

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finding that Thomas had any intent that Dawn or Kristi would benefit from his Will.

In weighing the evidence, the judge found Diane was "the most logical candidate" to be the intended beneficiary of the entire estate. We must defer to these findings because they are based on credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We also conclude that Judge Todd applied the appropriate standard of proof. Dawn and Kristi argue that the judge was required to determine Thomas's probable intent by application of the clear and convincing standard. In fact, as Judge Todd correctly held, in this context the issue was to be resolved by resort to the preponderance standard. See Fidelity Union Trust Co., supra, 36 N.J. at 565.

Affirmed.

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