Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500

Tuesday, May 10, 2011





Submitted March 22, 2011 - Decided

Before Judges Carchman and Graves.

May 6, 2011



On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 178490.

Mackiewicz & Associates, L.L.C., attorneys for appellant Christopher Carbone (Richard W. Mackiewicz, Jr., on the brief).

Coronato, Brady & Kunz, P.C., attorneys for respondent Maria Ehmer Carbone Sona (Terry F. Brady, on the brief).

PER CURIAM Plaintiff Christopher Carbone appeals from an order of the

Probate Part granting summary judgment in favor of defendant Maria Sona. The probate judge concluded that there were no factual disputes as to the narrow question of whether plaintiff filed a timely challenge to a will admitted to probate in Ocean County, and found that the challenge was untimely. We reverse.

These are the relevant facts before the judge on the motion for summary judgment. Decedent, Victoria Ehmer, died testate, and was survived by her only daughter, defendant, and three grandchildren, one of whom is plaintiff. Decedent had executed two wills, one in 2001, and another in 2004. In the 2001 will, decedent bequeathed her property to defendant, her grandchildren and her family church. Her 2004 will reflected a dramatic change as her entire estate was bequeathed to her only child - her daughter, defendant. No provisions were made for her grandchildren or her church.

Decedent died in July 2008. Plaintiff, who lived in the same building as his grandmother, was aware of his grandmother's death and attended her funeral. In August 2008, following decedent's death, defendant probated the 2004 will in Ocean County. According to plaintiff, he was unaware of these proceedings and received no notice as a contingent beneficiary. In October 2008, plaintiff's father, defendant's ex-husband, Michael Carbone, attempted to probate the 2001 will in Hudson County.1 During the pendency of that proceeding, the attorney for decedent's estate forwarded a letter dated November 30,

1 There are numerous references in the documents contained in defendant's appendix to a probate proceeding in Union County. Nothing in the record suggests that there was ever a probate proceeding in that county. We assume that the references are in error.



2008, to the Chancery Judge in Hudson County, with copies to "all parties in interest," stating: "[Defendant] is the Executrix of a Last Will and Testament executed in July 2004 that has been admitted to probate in Ocean County on 29 August 2008." (Emphasis added). The Chancery Judge thereafter denied probate because of the prior probate in Ocean County. An order dismissing the Hudson County probate proceedings was entered on December 12, 2008.

On March 16, 2009, plaintiff filed a complaint in the Probate Part in Ocean County alleging that the 2004 will was the product of undue influence or lack of testamentary capacity. Defendant filed an answer and counterclaim. She did not raise timeliness as a separate defense but approximately one year later moved for summary judgment arguing that plaintiff's action was not timely pursuant to the four month limitation provided by Rule 4:85-1, even including the thirty-day extension provided by Rule 4:85-2.

Plaintiff countered that the time bar was waived because defendant waited a year to assert this argument; rigorous application of Rule 4:85-1 should be suspended because plaintiff was unrepresented and allegedly unaware of the prior probate; plaintiff filed the Hudson County action within four months of defendant filing the Ocean County action; and that Rule 4:85-1



should be relaxed because the Hudson County probate was dismissed, not transferred.

The motion judge rejected plaintiff's arguments. He concluded that plaintiff filing the Hudson County action within four months of defendant's filing of the Ocean County probate was without merit as plaintiff should have made an application to transfer the Hudson County matter to Ocean County, and he failed to do so. Central to the judge's conclusion was his finding that plaintiff did in fact have knowledge of the 2004 will within the Rule 4:85-1 time period. The trial judge based this determination on an October 2008 heated email exchange between plaintiff and defendant in which plaintiff acknowledged that his mother was the named fiduciary in the will and that the will provided that the property in question was left to his mother.2 Plaintiff now appeals.

2 In relevant part, the email dated October 30, 2008, from defendant to plaintiff states:

"I am the 1, that had grandma put the will in every1's name when she asked to put it in my name. Not mine as she wanted to do!! Just so I wouldn’t have to fight with you about it!! I should have known better . . . .

At least I know I can go to bed with a clear [conscience] knowing about the will situation, cant say so much for yourself. Especially after, having a will made up most likely with out grandma, leaving everything to you. And even if she did go she was in no mental state to make any decisions. Again its your bed you sleep in it."



Rule 4:85-1 provides that a complaint to set aside the probate of a will must be filed within four months after probate. That time may be enlarged for a period not exceeding 30 days upon a showing of good cause and the absence of prejudice. R. 4:85-2. These time frames have been recognized to be in the nature of a statute of limitations. Marte v. Oliveras, 378 N.J. Super. 261, 268 (App. Div. 2005).

Rule 4:85-1, however, incorporates the provisions of Rule 4:50-1, and under appropriate circumstances, relief may be sought to permit a filing outside of the four-month limitation period. See, e.g., In re Green, 175 N.J. Super. 595 (App. Div. 1980) (permitting a filing eleven months after the entry of judgment); In re Schifftner, 385 N.J. Super. 37, 42-43 (App. Div.) (internal quotations omitted) (noting that Rule 4:85-1's time limit "does not . . . control applications brought under R. 4:50-1 (d), (e), or (f). Applications under those subsections must be brought within a reasonable time under either R. 4:50 or R. 4:85."), certif. denied, 188 N.J. 356 (2006).

In his opinion, the motion judge was prescient as to the impact of the filing in Hudson County. While indicating that the filing was timely and did give him "some pause," he determined that since the action was dismissed rather than transferred, it did not toll the four-month limitation period.



He further found that plaintiff had knowledge of the prior will and the pendency of the Ocean probate but did not act in a timely manner.

We conclude that the interests of justice require that plaintiff be allowed to proceed with his challenge in Ocean County. Ultimately, the issue is whether plaintiff's conduct in prosecuting the various actions precludes an opportunity to challenge the bona fides of the later will. We answer that question in the negative. The judge acknowledged that the Hudson probate matter could have been transferred to Ocean rather than dismissed and that would have brought the challenge within the limitations period.

We will not preclude a consideration of the merits based on this procedural nicety. The totality of the circumstances and interests of justice suggest that plaintiff should be allowed to proceed. Accordingly, we reverse the order granting summary judgment and remand for trial.

Obviously, our decision is procedural and we offer no opinion as to the merits of plaintiff's claims; moreover, because we reverse based on the timely filing in Hudson, we need not address the issue of defendant's failure to raise the limitations period of Rule 4:85-1 in a timely manner.

Reversed and remanded for trial.



Monday, May 9, 2011




DOCKET NO. A-3789-09T2


Submitted January 20, 2011 - Decided

Before Judges R. B. Coleman, Lihotz and

J. N. Harris.

On appeal from the Superior Court of New

Jersey, Chancery Division, Monmouth County,

Docket No. P-89-09.





Ignazio Del Bagno (decedent) died intestate on December 4,

2007, survived by three daughters: plaintiff Antoinette Early,

who qualified as the administrator of decedent's estate;

defendant Phyllis Rizzuto, formerly Phyllis Del Bagno; and Rose

Tittle, who is not a party to the action. In administering the

estate, plaintiff filed an action seeking defendant's informal

accounting regarding the disposition of decedent's bank

depository accounts. The complaint also alleged decedent's

May 6, 2011

2 A-3789-09T2

transfer of monies to defendant was not voluntary but a result

of defendant's undue influence. Following discovery, defendant

moved for summary judgment, which was granted.

Plaintiff appeals from the March 12, 2010 summary judgment

and dismissal of the complaint. Following our review, we

reverse that order because factual disputes, which turn on the

parties' credibility, necessitate a full evidentiary hearing.

The facts, viewed in a light most favorable to plaintiff,

are taken from the summary judgment record. Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Decedent died

on December 4, 2007, at the age of ninety. His wife predeceased

him but he was survived by his three daughters. From

approximately 1970, decedent had lived with defendant. On

October 7, 1999, decedent underwent heart surgery and later, on

March 30, 2000, suffered a disabling stroke that impeded his

ability to properly care for himself. From that time until

2003, decedent's three daughters rotated the provision of his

weekly care. Thereafter, decedent returned to defendant's home

under the supervision of live-in caretakers who provided roundthe-

clock care, until his death.

Both parties agree decedent did not hold assets solely in

his name, but titled realty in the names of family members and

created joint depository accounts. For example, decedent

3 A-3789-09T2

transferred the title of a St. Lucie County, Florida condominium

to his three daughters as joint tenants with rights of

survivorship. Also, he opened depository accounts at Hudson

City Savings Bank (Hudson City) that were held jointly with or

designated as payable on death (POD) to Tittle or defendant.

Decedent also had a joint checking account with his friend,

Anthony Yurksha and other accounts titled jointly with each of

his daughters.

Throughout the period when decedent resided with her,

defendant aided him in managing his financial affairs. Several

depository accounts were created jointly with or POD to

defendant at Hudson City, Valley National Bank and Clifton

Savings Bank. Plaintiff identifies two accounts that she

alleges decedent added defendant's name for convenience and not

because he intended to gift the monies to her.

The first was decedent's primary savings account (account

number ending in 0818), opened at Hudson City on May 31, 1996.

When decedent opened the savings account, it was titled in his

name and payable to defendant on his death. Additionally,

decedent executed a power of attorney, naming defendant his

attorney-in-fact in respect of the account.

The second account identified by plaintiff was a checking

account (account number ending in 6646) at the same bank. The

4 A-3789-09T2

checking account was opened in 1996 at the same time as the

savings account and titled jointly with defendant. Defendant

regularly moved money from decedent's savings account to the

joint checking account, from which she paid decedent's ongoing


The controversy can be narrowed even further, as

plaintiff's predominate challenge centers on the deposit and use

of the proceeds from the sale of decedent's investment property.

On October 25, 2004, decedent sold a rental property in Sewaren

realizing net proceeds of $216,173.59. When questioned about

the deposit of the proceeds, defendant testified her father

would have said, "do what you think is best." Thus, without

obtaining specific direction from decedent, defendant deposited

the proceeds into the Hudson City savings account then

transferred money from the savings account to the checking

account. Upon decedent's death, the Hudson City savings account

contained a balance of $33,509.55 and the checking account a

balance of $8,660.91. Quite simply, plaintiff contends

defendant utilized some of the Sewaren proceeds for her own

benefit, not for decedent's care, and that decedent would have

wanted all of his daughters to share in the proceeds of the

investment realty.

5 A-3789-09T2

In support of this position, plaintiff identified two

checks, drawn on the joint Hudson City checking account, which

were used to pay defendant's obligations. During the first day

of defendant's deposition, she was questioned regarding the

management of decedent's accounts and the payment of her

personal expenses using decedent's funds.

When first asked, defendant denied she ever used decedent's

assets, including joint depository accounts, to satisfy the

expenses incurred for her home. Then, when presented with two

checks drawn on the Hudson City joint checking account -- one in

the amount of $2,895, for her house repairs, and the other in

the amount of $2,094.44, for her February 2007 mortgage payment

-- defendant stated:

A: Well, I wrote that, so I must have

saw [sic] it some time or another. But I

did, at one time, . . . I deposited my own

money in 'cause I was writing out some

checks and I didn't want to go crazy. And I

wrote a few checks out. But my own money

was deposited into my father's checking

account. Yes, it was deposited in there.

. . . .

Q: Would it be the case that what

you're referring to is depositing your own

money into a joint account with your father

and then writing a check on that account to

someone else?

. . . .

6 A-3789-09T2

A: That's the only way I would do that.

I always deposited my own money. I would

never, ever -- in a few instances, I do

remember, I was very busy, and I . . . had

to make checks out.

. . . .

Q: Okay. Now, earlier today, do you

recall me asking you a question as to

whether or not any assets from your father's

account, including funds, including any

joint account, were ever used to pay for

expenses for your Wildwood property?

A: Yes.

Q: And what was your response earlier


A: I said, "no," because that wasn't

his expense; that was my money, not his.

. . . .

A: That was for Wildwood. That was for

-- my own money was put in there. It wasn't

my father's money, no.

When defendant's deposition was resumed, this additional

colloquy regarding the use of decedent's money took place:

Q: Now in the previous day's

deposition, you described that you had paid

for some things out of the [Hudson] checking

account for yourself, but you had deposited

money that was your money into that account,

is that right?

A: Yes, yes.

Q: Were there ever deposits made into

that account from the Hudson City savings


7 A-3789-09T2

A: For my father there was. Not for

me. For my father.

Q: Okay. Now with respect to what you

say were your deposits that went into the

Hudson City joint checking account, do you

have any paper evidence that would support


A: What would paper evidence be?

Q: Deposit slips?

A: Oh, God. I may have some.

. . . .

A: I have to go look.

No additional documents were sought by plaintiff or

provided by defendant. Plaintiff, however, did match up the

deposits made to the Hudson City joint checking account with

corresponding withdrawals made from decedent's Hudson City

savings account. No other deposits, presumably from defendant's

separate funds, were identified.

During summary judgment proceedings, the motion judge noted

there was no challenge to the assertion that decedent used joint

ownership as an estate planning tool. Finding no material facts

in dispute, the motion judge determined:

Upon the death of a joint [account] owner,

. . . the sums remaining in the account upon

the death of either party belong to the

surviving party, unless there is clear and

convincing evidence of a different intention

at the time the account is created.

8 A-3789-09T2

Here[,] the plaintiff admits that the

decedent created these joint accounts

frequently to manage his financial affairs

and that he was aware at his death that the

proceeds would go to the remaining party on

the account. I find that the plaintiff has

not produced any clear and convincing

evidence of any different intention by the


Also as to the issue of a sale of the

[Sewaren] home, . . . it has been shown that

the decedent reviewed the agreement of sale

for the [Sewaren] property and there's been

statements by two people involved with the

property that the decedent was alert of

mind. So here the evidence presented only

affirms that the decedent knew what he was

doing, knew what would happen with the

accounts upon his death, and no contrary

evidence has been presented by the


So I found that . . . the presumption

of undue influence has been rebutted. I

will grant summary judgment in this entire


This appeal ensued.

It is well-established that we review the motion court's

conclusions de novo, Estate of Hanges, 202 N.J. 369, 382 (2010),

without giving deference to the legal conclusions reached. City

of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). In our

review, we use the same standard as the trial court. Prudential

Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App.

Div.) (citing Antheunisse v. Tiffany & Co., 229 N.J. Super. 399,

402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)),

9 A-3789-09T2

certif. denied, 154 N.J. 608 (1998). The "essence of the

inquiry" is "'whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.'"

Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L.

Ed. 2d 202, 214 (1986)). Accordingly, after viewing the facts

in the light most favorable to the non-moving party, Hodges v.

Sasil Corp., 189 N.J. 210, 215 (2007), summary judgment must be

granted if "the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-

2(c); Brill, supra, 142 N.J. at 528-29.

In determining whether there is a genuine issue of material

fact for summary judgment purposes, the trial court, after

considering the burden of persuasion at trial, must ascertain

"what reasonable conclusions a rational jury can draw from the

evidence[.]" Id. at 535. See also R. 4:46-2(c). The judge

"'must accept as true all the evidence which supports the

position of the party defending against the motion and accord

him [or her] the benefit of all legitimate inferences which can

10 A-3789-09T2

be deduced therefrom[.]'" Ibid. (quoting Pressler, Current

N.J. Court Rules, comment 1 on R. 4:40-2 (1991)). If reasonable

minds could differ, the motion must be denied. Ibid.

"[A] non-moving party cannot defeat a motion for summary

judgment merely by pointing to any fact in dispute." Id. at 523

(emphasis in original). A party opposing the motion must offer

facts that are substantial or material in order to defeat the

grant of summary judgment. Judson v. Peoples Bank & Trust Co.

of Westfield, 17 N.J. 67, 75 (1954). "Bare conclusions in the

pleadings, without factual support in tendered affidavits, will

not defeat a meritorious application for summary judgment."

U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n, 67 N.J. Super. 384,

399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the

City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)).

Furthermore, disputed issues "of an insubstantial nature" cannot

overcome a motion for summary judgment. Brill, supra, 142 N.J.

at 530 (citing Judson, supra, 17 N.J. at 75). Therefore, "when

the evidence 'is so one-sided that one party must prevail as a

matter of law,' the trial court should not hesitate to grant

summary judgment." Id. at 540 (citation omitted).

On appeal, plaintiff argues the summary dismissal of her

complaint was error because genuine issues of material fact

existed regarding whether defendant had authority to control

11 A-3789-09T2

decedent's Sewaren proceeds, whether decedent was a victim of

undue influence and whether defendant converted decedent's

money. Plaintiff generally asserts that when decedent

designated defendant as the joint owner or recipient upon his

death of the Hudson City savings and checking accounts, he did

so merely as an accommodation.

More specifically, plaintiff challenges whether defendant

had actual or apparent authority to deposit the proceeds from

the Sewaren realty sale into the Hudson City savings account,

rather than into a different account owned by decedent. Also,

she argues defendant's authority to manage decedent's funds did

not include utilizing the realty proceeds. Finally, plaintiff

contests defendant's unsupported statements that she deposited

her own money into the joint account to cover checks written for

her individual expenses, claiming that assertion alone is

insufficient to grant summary judgment on her cause of action

for conversion. Plaintiff argues each of these questions must

be determined by the factfinder when discerning whether the use

of the funds was a result of undue influence because of the

"confidential relationship" between decedent and defendant.

On the other hand, defendant notes decedent's practice of

using joint accounts was uncontroverted and the Hudson City

accounts were established long before decedent's debilitating

12 A-3789-09T2

stroke. The decedent's intent that defendant retain the Hudson

City accounts upon his death was clearly and convincingly

established when they were opened, validating the presumption of

her ownership upon his death as the surviving joint owner.

Further, the Sewaren proceeds were deposited into decedent's

savings account and used for his health, maintenance and support

as he intended. Although her accounting is informal, defendant

believes she has explained ninety percent of the funds, showing

they were used for decedent.

When examining accounts jointly titled or payable to

another on the death of the initial depositor, the presumption

of legal entitlement by the surviving joint account holder is

rebuttable. In re Estate of Penna, 322 N.J. Super. 417, 422

(App. Div. 1999). The sums on deposit are assumed to be the

property of the surviving joint account holder "unless there is

clear and convincing evidence of a different intention at the

time the account is created." N.J.S.A. 17:16I-5(a).1 This

burden of proof is modified, however, when the moving party "can

prove by a preponderance of the evidence that the survivor had a

confidential relationship with the donor who established the

account[.]" Estate of Ostland v. Ostland, 391 N.J. Super. 390,

1 The statute is part of the Multiple-Party Deposit Account

Act, N.J.S.A. 17:16I-1 to -17.

13 A-3789-09T2

401 (2007). In that event, "there is a presumption of undue

influence," such that the burden of persuasion shifts, and

"the survivor donee must rebut [the presumption] by clear and

convincing evidence." Ibid. If the surviving account holder

carries the burden of proof, then N.J.S.A. 17:16I-5(a) controls

disposition of the account, however, the party challenging the

joint account designation may further introduce additional

evidence of undue influence to defeat the statutory presumption

of survivorship. Penna, supra, 322 N.J. Super. at 426.

As applied here, once plaintiff proves a confidential

relationship existed between defendant and decedent, the burden

shifts to defendant to show the Hudson City savings and checking

accounts were not merely "convenience accounts" so that she

could "more easily handle the financial affairs of [decedent,]

the true owner of the asset." Bronson v. Bronson, 218 N.J.

Super. 389, 393 (App. Div. 1987). Defendant must show the joint

designations were intended as a voluntarily gift to her and,

further, that decedent "understood the legal effect of the

transfer of assets into joint accounts." Penna, supra, 322 N.J.

Super. at 423. If she cannot, "a joint survivorship account has

not been validly created" and the statutory presumption is

inapplicable. Id. at 419. If defendant presents those proofs,

plaintiff may then offer additional evidence of undue influence

14 A-3789-09T2

over the Sewaren proceeds or conversion of decedent's assets

prior to his death.

The facts in Penna closely parallel those at hand. In

Penna, a mother gave her daughter control of her bank account,

even though her son also helped her with other matters. Id. at

424. In the final stage of her life, the mother moved into the

home of her daughter and continued to spend time with both of

her children. Ibid. The trial court found the "mother-daughter

relationship, as well as the trust [the mother] placed in her

[daughter], lead to the conclusion that a confidential

relationship existed[.]" Ibid. The mother's son challenged his

mother's intention to transfer her joint account to her daughter

under N.J.S.A. 17:16I-5(a). Penna, supra, 322 N.J. Super. at

422. We concluded the trial court erred because it "should have

shifted the burden of proof to [the daughter] once "[it]

concluded that a confidential relationship existed between" the

daughter and the mother. Id. at 424-25. Instead, the trial

judge placed the burden on the challenger to prove the daughter

exercised undue influence over her mother in creating the joint

accounts. Id. at 422. We stated that once a confidential

relationship is proven, the putative joint owner has the burden

to prove that joint survivorship was the voluntary knowing

intention of the decedent. Ibid.

15 A-3789-09T2

Here, plaintiff satisfactorily proved a confidential

relationship existed between decedent and defendant. Decedent

lived with defendant for over thirty years before suffering a

stroke in 2000. Defendant had always assisted decedent with his

personal and financial affairs. Decedent returned to

defendant's home in 2003, physically dependent on round-theclock

caregivers, where he stayed until his death in 2007.

Plaintiff believed defendant's undue influence was evinced

with respect to the disposition of the Sewaren proceeds. In

2004, when decedent was very ill, he sold his home in Sewaren.

Defendant transported him to the closing on two separate

occasions. Decedent was too sick to travel on the first date;

when he returned on the second, he could not exit the car, so

the documents were brought to him for his signature. Defendant

took custody of the proceeds check and deposited it into the

Hudson City savings account, without seeking direction from

decedent. Plaintiff argues the confidential relationship

created a "presumption of undue influence" regarding this

transaction, shifting the burden of persuasion to defendant to

prove by clear and convincing evidence that decedent intended to

deposit the Sewaren proceeds into the Hudson City savings

account, which defendant would receive upon his death. Ostland,

supra, 391 N.J. Super. at 401.

16 A-3789-09T2

Defendant contends it is clear that decedent intended to

pass the asset through his Hudson City accounts. She dispels a

claim of undue influence along with the notion that decedent

intended the Hudson City accounts be divided equally among his

three daughters, stating: "decedent's undisputed longstanding

practice of using joint accounts for estate planning purposes,

his failure to leave a will together with defendant's long

stewardship of this power of attorney/POD account for decedent's

own benefit."

Our assessment reveals errors requiring reversal of summary

judgment. Not only are there contrary factual assertions and

other proofs identifying material factual disputes that must be

tested by an evidentiary hearing, but also the motion judge

misstated the burden of proof. Additionally, the motion judge

dismissed the claim of conversion without making findings.

First, the proofs regarding circumstances surrounding the

deposit of the Sewaren funds and the actual disposition of the

monies rest almost entirely upon defendant's otherwise

unsupported statements. Defendant's undocumented explanation of

the disposition of the Sewaren proceeds, as well as her

exclusive use of monies for her benefit during decedent's life

without evidence of her claimed offsetting personal deposits to

17 A-3789-09T2

cover the expenses, are disputed necessitating a credibility


Credibility must be determined by the finder of fact,

making it inappropriate to formulate such findings from a

summary judgment record. Brill, supra, 142 N.J. at 540; D'Amato

v. D'Amato, 305 N.J. Super. 109, 114-15 (App. Div. 1997). A

trier of fact must be "free to weigh the evidence and to reject

the testimony of a witness, even though not directly

contradicted, when it . . . contains inherent improbabilities

and contradictions which alone or in connection with other

circumstances in evidence excite suspicion as to its truth."

D'Amato, supra, 305 N.J. Super. at 115 (internal quotations and

citations omitted).

Second, in her findings and conclusions, the motion judge

did not mention the confidential relationship between defendant

and decedent or articulate the burden shifting analysis

discussed in Penna. Also, her findings incorrectly suggest

plaintiff had the burden to rebut the statutory presumption of

joint ownership, as the judge stated, "I find . . . plaintiff

has not produced any clear and convincing evidence of

[decedent's] different intention" at the time the Hudson City

accounts were created.

18 A-3789-09T2

Third, on the issue of conversion, the motion judge

misinterpreted plaintiff's challenge regarding the Sewaren

proceeds. The court ignored plaintiff's position that defendant

could not show permission to deposit the check into the Hudson

City account -- an asset defendant believed she would eventually

own. Instead, the judge focused on whether decedent knowingly

sold the property, stating: "the evidence presented only affirms

that the decedent knew what he was doing, knew what would happen

with the accounts upon his death, and no contrary evidence has

been presented by the plaintiff." We disagree.

The record includes defendant's admission that she never

asked her father what to do with the check and simply assumed

she should do what she thought best. Plaintiff should be

granted an opportunity to test at trial the question of whether

defendant abused her position as fiduciary because she believed

the account would be hers upon her father's death. From this

record, it is unclear if plaintiff will introduce additional

evidence; nevertheless, the determination requires an assessment

of defendant's credibility, which must be made after hearing all

of the evidence presented as a "case may present credibility

issues requiring resolution by a trier of fact even though a

party's allegations are uncontradicted." D'Amato, supra, 305

N.J. Super. at 115.

19 A-3789-09T2

The judge, however, made no factual findings on plaintiff's

proofs; she simply dismissed the claim of conversion. The

record contains defendant's broad assertion that she deposited

her own funds into the joint checking account to pay her bills,

which is refuted by plaintiff's documentary evidence. We do

recognize that if defendant successfully rebuts the presumption

of undue influence arising from her confidential relationship

with decedent, and defendant has no additional proofs, then the

determination regarding the disposition of the checking account

may be moot because the account will inure to defendant. This

possible eventuality, however, will not obviate factual findings

supporting such determination, which includes the assessment of

the parties' credibility. Therefore, these additional factual

disputes must abide a hearing.

For the reasons set forth in this opinion, we find there

are disputed material facts and conclude the motion judge erred

in granting defendant's motion for summary judgment.

Accordingly, the March 12, 2010 order is reversed and the matter

remanded for trial.

Reversed and remanded.

Sunday, May 1, 2011

Attorney does not have standing to file guardianship


In The Matter of :




an Alleged Incapacitated Person :





_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _

Decided: April 12, 2011

By: Walter Koprowski, Jr., J.S.C. NOT FOR PUBLICATION







: DOCKET NO.: ESX-CP-0196-10

Costa Nova is a 99 year old gentleman who resides at home in Montclair. The Plaintiffs Abraham Riley, Jr. and Gail Winston are friends of Mr. Nova, and were formerly his attorneys in fact. Costa Nova signed an advanced directive for health care on November 26, 2008. He signed a durable healthcare power of attorney in favor of petitioner Abram Morton Riley, Jr. also on November 26, 2008. Finally, Nova signed a general power of attorney in favor of both petitioners, Abram Morton Riley, Jr. and Gail Winston on May 14, 2009. He also signed a will naming Abram Morton Riley, Jr. as his executor and Gail Winston as substitute executor on July 14, 2006.

Costa Nova revoked his prior power of attorney by formal revocation dated June 25, 2010. He executed a new power of attorney in favor of his attorney of over 20 years, Grant Gille, Esq. on June 25, 2010 and a new durable medical power of attorney in favor of Ms. Theresa Alaimo (his “roommate” and caregiver) under a document executed May 13, 2010. Ms. Alaimo is also the primary beneficiary under a new will executed June 25, 2010.

Petitioners filed their verified complaint and order to show cause on July 28, 2010. Motion to Dismiss was filed February 24, 2011. Dr. James Morgan examined Mr.


Nova on May 11, 2010 in connection with this guardianship petition. On June 25, 2010, Mr. Nova was voluntarily examined by his attending neurologist, Dr. Widdess-Walsh. His psychiatrist Dr. Peter Crain examined Mr. Nova on July 2, 2010. This Court signed an order compelling Mr. Nova to undergo another medical exam on November 12, 2010 pursuant to R. 4:86-4(c) by Dr. Carol Anekstein.

Anthony LaPorta, Esq. of the Rivkin Radler law firm was appointed to serve as guardian ad litem for Mr. Nova by order dated December 1, 2010. He submitted his report on January 18, 2011, in which he concluded the evidence does not clearly and convincingly support a conclusion that Costa Nova is incapacitated.

Several doctors have concluded Mr. Nova is not affected by significant cognitive dysfunction, and/or he is not fully incapacitated. Mr. Nova’s neurologist, Dr. Widdess-Walsh concluded, “overall there is no clinical evidence of significant cognitive dysfunction.” Mr. Nova’s psychiatrist, Peter Crain, M.D. concluded Mr. Nova is mentally competent to manage his own affairs and person after an examination on July 2, 2010. Dr. Anekstein, the psychiatrist retained by the petitioners who examined Mr. Nova pursuant to court order found he “lacks full capacity to make informed decisions about his financial affairs or health, and is unable to care for himself independently.” Counsel for the respondents points out to be declared incapacitated, a person needs to be fully incapacitated, not just lacking full capacity. Court appointed guardian ad litem Anthony LaPorta is of the view that Mr. Nova is not an incapacitated person. He writes, “It is our opinion Mr. Nova is not incapacitated. . . . [He] has consistently demonstrated clarity of thought . . . Although we agree Mr. Nova requires assistance, we do not believe his limitations rise to the level of incapacity.”

Mr. Nova now moves to dismiss this petition. The major emphasis of Mr. Nova’s motion is that former (or even current) attorneys in fact lack standing to bring guardianship actions. Mr. Nova cites a case with facts very similar to the matter presently before this court. In In re Jane Tierney, an Alleged Mental Incompetent, 175 N.J. Super. 614 (Ch. Div 1980), the Somerset County Chancery Court found a longtime friend, who had helped the alleged incapacitated person with her affairs and finances and was formerly her attorney in fact, lack standing to bring a guardianship action. In that case, the alleged incapacitated person was injured as a result of an automobile accident at the age of 55. Id. at 617. She had no spouse or children, and her parents predeceased the accident. Id. The Plaintiff was a childhood friend, and became the alleged incapacitated person’s attorney in fact by a power of attorney executed in January of 1978. Id. On February 13, 1980, apparently over concerns that her finances were being mismanaged, Ms. Tierney revoked this power of attorney and executed a new power of attorney in favor of her attorney. Id. The guardianship action was filed six days later on February 19, 1980. Id. at 618.

In discussing the standing of the Plaintiff to bring a guardianship action, the Court noted that the statutory requirements that a complainant must state his relationship to the alleged incapacitated person, and if not spouse or next of kin, his interest, “reflects and substantiates the general rule that a proper complainant must be a relative or a person


with a legal or equitable interest in the subject of the action.” Id. at 622. The court noted that a legal or equitable interest could mean a creditor of the alleged incapacitated person or an institution in which the person resides could bring a guardianship action. Id. In concluding that the Plaintiff lacked standing as friend or former attorney in fact to bring the guardianship action, the Court wrote, “The public policy which gave birth to the standing requirements as to incompetency actions is clearly to protect individuals from unwanted interference in their affairs; to shield an individual form the necessity of defending himself from frivolous or insidious incompetency charges. It is the opinion of this court that the general need for such protection has not diminished; certainly the situation presented in the instant case does not call for modification of the standing requirement.” Id. at 623.

The facts of this case warrant a similar conclusion. The Plaintiffs are friends or now “former friends” of Costa Nova. They are also former attorneys in fact under a revoked power of attorney. Even if the Plaintiffs were current attorneys in fact under a valid power of attorney document, they still would not have standing. A power of attorney does not give one a “legal or equitable interest” in either the assets or person of the principal. A power of attorney is an "instrument in writing whereby one person, as principal, appoints another as his [or her] agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal." D.D.B. Interior Contr., Inc. v. Trends Urban Renewal Ass'n, Ltd., 176 N.J. 164, 168 (N.J. 2003) (citing Black's Law Dictionary 1171 (6th ed.1990)); see also N.J.S.A. 46:2B-8.2a (defining power of attorney as "written instrument by which an individual known as the principal authorizes another individual . . . known as the attorney-in-fact to perform specified acts on behalf of the principal as the principal's agent").

Plaintiffs advance two main arguments in defense of their standing to bring this action. First, they challenge the revocation of the powers of attorney which made them Mr. Nova’s attorneys in fact. They failed to challenge those revocations in the complaint, and now seek to amend the complaint to include claims challenging the revocations. However, if those revocations were invalid, and the Plaintiffs were still attorneys in fact, Plaintiffs would still not have standing to bring a guardianship action, because they do not have any equitable or legal interest in Mr. Nova’s property. The second argument they make is premised on N.J.S.A. 3B:12-25, which governs individuals who may serve as guardians of an incapacitated person. The statute reads:

“The Superior Court may determine the incapacity of an alleged incapacitated person and appoint a guardian for the person, guardian for the estate or a guardian for the person and estate. Letters of guardianship shall be granted to the spouse or domestic partner . . . if the spouse is living with the incapacitated person as man and wife or as a domestic partner . . . at the time the incapacitation arose, or to the incapacitated person's heirs, or friends, or thereafter first consideration shall be given to the Office of the Public Guardian for Elderly Adults in the case of adults within the statutory mandate of the office, or if none of them will accept the letters or it is proven to the court that no appointment from


among them will be to the best interest of the incapacitated person or the estate, then to any other proper person as will accept the same, and if applicable, in accordance with the professional guardianship requirements of P.L.2005, c.370 (C.52:27G-32 et al.). . . The Office of the Public Guardian for Elderly Adults shall have the authority to not accept guardianship in cases determined by the public guardian to be inappropriate or in conflict with the office.

That statute merely lays out the priority order of who may serve as the guardian. It does not establish who may institute a guardianship action, nor does its reference to “some other person” serving as the guardian mean that anyone may file an action for guardianship. Neither of the Plaintiffs’ arguments is convincing. The motion to dismiss for lack of standing is granted.

Plaintiff also seeks a variety of relief by way of cross motion. All forms of requested relief are moot in light of Plaintiffs lack of standing. First, Plaintiff seeks leave to amend its complaint to include a challenge to the revocations of Mr. Nova’s previous power of attorney document. Under N.J. Court Rule 4:9-1, “A party may amend any pleading as a matter of course at any time before a responsive pleading is served. . .Thereafter, a party may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice.” Leave to amend should be liberally granted, without consideration of the ultimate merits of the amendment. Jersey City v. Hague, 18 N.J. 584, 602 (1955). Further, the broad power of amendment may be literally exercised at any stage of the proceedings unless undue prejudice would result. Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001). However, the power to grant a motion to amend a pleading remains within the Court’s discretion, and a motion to amend is properly denied where allowing the amendment would unduly protract the litigation. Cutler v. Dorn, 196 N.J. 419, 441 (2008); Franklin Med. Associates v. Newark Public Schools, 362 N.J. Super. 494, 506 (App. Div. 2003); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994). In deciding whether to grant leave to amend, the Court may consider both merit of the claim, Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476 (App. Div. 1995), and the lateness of a motion for leave to amend, Globe Motor Car Co. v. First Fidelity Bank, N.A., 291 N.J. Super. 428 (App. Div. 1996).

In this case, responsive pleadings have long been filed. Therefore, amendment may only be allowed by consent of the adverse party or by leave of Court. While leave to amend pleadings is generally liberally granted, it remains within the Court’s discretion to deny leave, particularly in cases where the proposed claim lacks or merit or where leave to amend is requested at a late juncture in the case. Amending the complaint in this case would be both futile and unduly delaying of the litigation. Even assuming arguendo that the powers of attorney naming the Plaintiffs as attorneys in fact were valid, they would still not have standing to bring this action. Also, this guardianship action, in which numerous doctors and the court-appointed guardian ad litem have come to the conclusion that Mr. Nova is not incapacitated and does not require a guardian, has been in litigation for more than half a year. To allow amendment of the complaint at this late juncture, for


the purpose of challenging revocations of power of attorney, is a waste of the court’s time because the plaintiffs do not have standing in any event.

Plaintiffs also seek to compel a video-taped deposition of Mr. Nova, and an “accounting” of his finances since May of 2010. These remedies are inappropriate at this time, in view of this decision.

Anthony J. LaPorta, Esq., guardian ad litem for Mr. Nova, seeks counsel fees in the amount of $11,275.00. I find his hourly rate in the amount of $250.00 is in accordance with the fee customarily charged in Essex County for court appointed attorneys in guardianship proceedings. I find 45.10 hours were necessary in view of the questions involved. I find expenses in the amount of $71 were necessary. Mr. LaPorta’s fee application is approved.


holding that the doctrine of probable intent comes into play when a Will contains a gap


DOCKET NO. A-3400-09T1


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. 1072 66.

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.


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

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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 toN.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

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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

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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, 39N.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.




1 Thomas 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.

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

SECOND: I give such jewelry, personal effects, household goods, works of art and automobiles as I may own at the time of my death, together with all policies of insurance 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.

3 For the sake of completeness, subsection (a) of this fifth paragraph states in full: "I direct that all inheritance, estate, transfer and succession taxes, federal, state and 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).