IN THE MATTER OF THE ESTATE OF VICTORIA EHMER, Deceased. APPELLATE DIVISION DOCKET NO. A-5041-09T1

IN THE MATTER OF THE ESTATE OF VICTORIA EHMER, Deceased.

APPELLATE DIVISION DOCKET NO. A-5041-09T1

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Submitted March 22, 2011 - Decided

Before Judges Carchman and Graves.

May 6, 2011

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

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.

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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

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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."

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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.

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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.

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