SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION-ESSEX COUNTY
PROBATE PART
DOCKET NO.: ESX-CP-0070-2009
Decided: May 31, 2011
By: Walter Koprowski, Jr., J.S.C.
I. Introduction
This letter opinion will address the following issues:
a. Whether Mrs. Tsairis executed a deed dated July 21, 2008, transferring the
real property located at 53 Povershon Road in Nutley, New Jersey under
undue influence?
b. Whether Mrs. Tsairis effectively revoked her May 23, 2000 Will in July,
2008?
c. Whether Mrs. Tsairis executed her May 23, 2000 Will under undue
influence?
II. Procedural History
Plaintiffs Pamela Conry (“Pam”), Denise Kane (“Denise”), and Peter Tsairis, Sr.
(“Peter”), filed a verified complaint and order to show cause seeking temporary restraints in the
Chancery Division/General Equity Part on September 22, 2008, against John Bazan (“John”),
and Cynthia Bazan (“Cynthia”), alleging undue influence, duress, conversion, unjust enrichment,
and breach of fiduciary duty. The temporary restraints in the order to show cause were resolved
by a consent order dated November 7, 2010. In the complaint, Plaintiffs sought compulsory
production of Mrs. Tsairis for an evaluation and assessment by a Geriatric Care Manager,
compensatory and punitive damages, costs, attorney’s fees, and interest. Defendants filed an
Answer to this complaint on October 17, 2008. In an order dated September 18, 2009, the
Defendants were granted leave to file an amended answer with counterclaim.
Georgia Tsairis died October 28, 2008, leaving a Last Will and Testament executed May
23, 2000. Plaintiffs filed a caveat on October 30, 2008 against the probate of the Mrs. Tsairis’
2000 Will. Plaintiffs then filed a verified complaint and order to show cause in the Probate Part
on March 17, 2009, entitled “In the Matter of the Estate of Georgia Tsairis”, docket number
ESX-CP-0070-2009, seeking an order removing Defendants as Executrix/Contingent Executor;
declaring that the 2000 Will was null and void and inadmissible to probate; declaring that the
Estate shall be administered under the laws of intestacy; granting letters of administration to
Pamela Conry; compelling Defendants to provide an inventory and accounting; declaring a
constructive trust; and awarding counsel fees and costs and interest.
Defendants Cynthia Bazan and John Bazan filed an answer and opposition to the probate
order to show cause and verified complaint on May 13, 2009. The cases were consolidated by
order dated June 9, 2009.
On November 13, 2009, Plaintiffs filed an answer to Defendant’s counterclaim. The
matter was originally scheduled for plenary hearing January 19, 2010. The hearing began on
March 17, 2010 and continued on March 18, 2010, May 5-6, 2010, May 10-12, 2010, and June
23-25, 2010.
III. Statement of Facts
The following proofs were presented at trial. Georgia and Constantine Tsairis had 4
children: Cynthia Bazan, Denise Kane, Pamela Conry and Peter Tsairis. In the spring of 2000,
Mrs. Tsairis had a heart attack and had to undergo surgery. Mrs. Tsairis was nervous but
confident that she would survive this procedure. It was around this time that Mr. and Mrs. Bazan
decided to have Wills prepared. They were referred to Mr. Jacob Rosenkranz, a part-time
attorney, by their friends, the Fischers. The Bazans, Cynthia’s mother-in-law and Mr. Vincent
DeMaio were scheduled to meet with Mr. Rosenkranz to have their wills prepared and executed
simultaneously, or nearly so. According to Cynthia Bazan, the decedent and her husband found
out about the Will signing, and they came along with Cynthia’s Uncle Jimmy to have their Wills
done as well.
The group met twice with Mr. Rosenkranz at Mrs. Bazan’s mother-in-law’s home. He
spoke with them individually. On May 23, 2000, Mrs. Tsairis executed a simple six paragraph
Will prepared by Mr. Rosenkranz, in which she left her entire estate to her daughter, Cynthia
Bazan and her son-in-law, John Bazan, in equal shares. She appointed Cynthia as executrix and
nominated her son-in-law as contingent executor. At the time of execution, Mrs. Tsairis was 75
years of age. The instrument did not make any provision for Mr. Tsairis or the other children
and did not contain any explanation as to this disposition. Mrs. Tsairis also executed a general
durable power of attorney in favor of Mrs. Bazan on that same date. Other than the testimony of
Cynthia explaining that her mother trusted her and that they had a close relationship, there was
no explanation for this disposition. Her mother gave Cynthia the original Will for safe keeping
after its execution.
The decedent’s husband, Constantine Tsairis, died in 2005. Over the course of several
weeks in June and July of 2008, Mrs. Tsairis engaged in a rather unusual exercise in which she
met with three different attorneys to review her estate plan. Mrs. Tsairis first met with Mr.
Rohde, who drafted documents which she never executed. She next met with Mr. Gizzo who
recommended that she continue with Mr. Rohde. Finally, Mr. Broder prepared a deed conveying
her most significant asset, her home to Cynthia and John Bazan on July 21, 2008. Mrs. Tsairis
died on October 28, 2008. Plaintiffs now argue that the deed conveying 53 Povershon Road,
Nutley, New Jersey should be vacated; her 2000 Will was revoked in July, 2008; and the 2000
Will, in any event, was the product of undue influence and should be declared ineffective.
Peter Tsairis, the son of Georgia Tsairis, is employed by the State of New Jersey as an
inspector for the Bureau of Housing. He is a plaintiff in this action, and as a potentially
disinherited beneficiary, he clearly has an interest in the outcome of this litigation. In or around
2000, Peter separated from his wife and moved into his parents’ house along with his two
children. His mother was weak and recuperating from surgery in May, 2000. He testified he did
everything around the house to help his parents and continued to help when his father died in
2005. His sister, Denise, would stop by several times per week. Pam talked to her mother on the
phone and visited only occasionally. Cynthia came almost every day and took Mrs. Tsairis to
doctor appointments.
Peter closed his luncheonette business in Belleville in 2003. He concedes that he had
financial problems which included business loans and IRS liens in excess of $300,000. His
mother and father knew about his financial circumstances and wanted him to have their house.
He recalls his parents told him they were not concerned about the financial circumstances of his
sisters. At trial, there were allegations of physical threats by Peter and contentions that his
mother was afraid of him. Peter testified he never threatened his mother and she never indicated
that she was afraid of him. However, he conceded that he had a heated argument with Cynthia in
2008 in front of his mother.
In the spring of 2008, his mother told him she wanted to speak to an attorney about her
share of her brother Jimmy’s estate, which was being held by Cynthia. She asked him to locate
an attorney. He spoke to neighbors, who recommended the Piro firm. His mother called and
made the appointment. He took her and met with Mr. Rohde, who was a partner in that firm.
Peter did not retain Mr. Rohde. He was present when Mrs. Tsairis told Mr. Rohde that she was
having problems with her daughter, Cynthia Bazan, concerning Jimmy’s estate. She also wanted
a copy of her own Will, which Cynthia had in her possession. Mr. Rohde spoke with Mrs.
Tsairis alone and then advised that he would ask Cynthia to return the Will.
Christopher G. Rohde confirms that he was the attorney contacted by Mrs. Tsairis. He
was admitted in New Jersey in 1996, is a trained Certified Pubic Accountant, and limits his
practice to estate planning and elder law. He answered questions in an honest and forthcoming
manner. I found him to be a very credible witness.
He recalls that he was contacted by Peter and met with him and Mrs. Tsairis on June 13,
2008. His intake notes confirm that he represented Mrs. Tsairis. While she was elderly and did
not drive, she did not appear to require any assistance. In his view, Mrs. Tsairis appeared to have
capacity to understand the conversation and was of sound mind.
Peter attended the meeting. However, Mr. Rohde was clear in his testimony that it was
Mrs. Tsairis, not her son, who explained that she had previously executed a Will but did not have
a copy as it was in the possession of her daughter Cynthia. Mrs. Tsairis owned a home at 53
Povershon Road in Nutley, New Jersey which had a value of approximately $400,000.00. She
also had about $18,000 in the bank. She wanted the property to go to her son, Peter, because he
lived with her. She did not believe that he could afford to live anywhere else or that he would be
able to buy out his sisters after her death. It was not her primary purpose to disinherit her other
children. She loved them all, but her daughters were settled and comfortable and she wanted to
take care of her son. Although it was his custom to exclude family members when there was a
discussion involving unequal distribution of a client’s estate, he could not recall if Peter was
asked to leave the interview at any point. Mrs. Tsairis did indicate to Mr. Rohde that her
daughter Cynthia was concerned that Peter’s estranged wife should not benefit from their
mother’s estate. Mr. Rohde explained that long term care could be an issue and suggested a life
estate as an alternative to an outright transfer to Peter.
As a result of this conference, he drafted a new Will which devised everything to Peter
and prepared a deed transferring the property to Peter with a life estate in favor of Mrs. Tsairis.
He sent these draft documents to his client. Mr. Rohde also prepared a letter dated June 25, 2008
to Cynthia requesting that she return Mrs. Tsairis’ estate planning documents. He was contacted
by Mrs. Tsairis and arranged a second conference for July 15, 2008.
On or about July 11, 2008, he received a call from Cynthia, who advised that she was
concerned that Peter was influencing their mother. Mr. Rohde advised her that he believed Mrs.
Tsairis was acting voluntarily. Nevertheless, he promised to take extra precautions to insure that
there was no undue influence. Since he represented Mrs. Tsairis, he recommended that Cynthia
speak to a lawyer to protect her interests.
On or about July 15, 2008, he received a call from John Gizzo, Esq., who advised that he
represented Cynthia Bazan. Mr. Rohde assured Mr. Gizzo that documents would not be signed
that day and that he would arrange for a joint meeting with Mr. Gizzo so that all could be
confident that the documents were being voluntarily executed by Mrs. Tsairis without undue
influence.
Interestingly, he met alone with his client on that very same day. He told Mrs. Tsairis
about her daughter’s call and Mr. Gizzo’s involvement. She seemed sharp and appeared to be
telling him the truth when she advised that she understood the documents and she was not being
influenced by her son. In fact, she told him that she thought her daughter, Cynthia, was
attempting to influence her decision. He suggested a meeting with Mr. Gizzo in order to address
her daughter’s concerns, and she agreed in order to avoid a fight among her children over her
proposed plan.
Mr. Rohde, Mr. Gizzo and Mrs. Tsairis met at her home on July 18, 2008 for about three
hours. They discussed the proposed estate plan. She indicated that she did not want Cynthia to
get the house. She wanted to leave the house to Peter but she also wanted her daughters to get
something and needed to give her estate plan a little more thought because of her concern for
them.
This meeting made two things clear to Mr. Rohde:
(1) Mrs. Tsairis wanted to revoke the 2000 Will; and
(2) Peter was not exerting influence over his mother—rather; Cynthia was attempting
to have her not complete the proposed plan.
Mr. Rohde planned another meeting with Mrs. Tsairis to finalize the documents.
However, he was unable to arrange for a meeting with Mrs. Tsairis. He received a telephone call
from Pam and Peter on July 21, 2008 advising that their mother had not been brought back to the
house by Cynthia. He also received correspondence dated July 22, 2008 from Mr. Broder
advising that he had been retained by Mr. and Mrs. Bazan, had a meeting with Mrs. Tsairis, and
she had executed a deed transferring the property to Cynthia.
Mr. Rohde immediately drafted a letter dated July 23, 2008 to Mr. Broder in which he
advised of his representation of Mrs. Tsairis. He explained that it was Mrs. Tsiaris’ intent to
revoke her 2000 Will and the deed which she executed was not in accordance with her
intentions.
Attorney John Gizzo also testified that he was contacted by Cynthia. Mr. Gizzo is a solo
practitioner admitted to practice in New Jersey in 1996. His testimony confirms Mr. Rohde’s
recollection of events in most respects. Although seemingly contacted by Cynthia because he
was a neighbor of the Tsairis family, there was an attempt at trial by Cynthia to discredit Mr.
Gizzo’s testimony. I find that his indirect connection to the Tsairis family and a professional
relationship with members of Mr. Rohde’s law firm did not prejudice his handling of this matter.
It is unclear who Mr. Gizzo represented in this matter. He was contacted by Cynthia
Bazan. In Mr. Rohde’s memo dated September 17, 2008, he indicates that Mr. Gizzo advised
him that he represented Cynthia Bazan. However, in Mrs. Tsairis’ notes, she refers to Mr. Gizzo
as her lawyer. Mr. Gizzo did not have a retainer agreement executed and never sent an invoice
for his time. In his testimony, he indicated that he was under the impression that he was
representing the interests of Mrs. Tsairis.
In any event, Mr. Gizzo recalls that he met with Cynthia and Mrs. Tsairis as the result of
Cynthia’s call to him in July 7, 2008 because she wanted him to see her mother as she was
concerned about her well being. Cynthia did most of the talking, expressed concern over Peter’s
intentions, and requested the transfer of the house. He did not observe any duress or influence
exercised by Cynthia over her mother during this meeting. However, he did recall that Mrs.
Tsairis referred to Cynthia as “the General”. According to Mrs. Tsairis, she was the oldest, took
care of her siblings and the grandchildren and liked to be in charge. Although Mrs. Tsairis
indicated that she met with Mr. Rohde on the previous day, she could not tell him what was
discussed or signed. He quite logically became concerned because his client had met with two
different lawyers in two days. He told Mrs. Tsairis that he needed to speak with Mr. Rohde
before he did anything else.
He spoke to Mr. Rohde that very same day, and Mr. Rohde told him about the meeting
and Mrs. Tsairis’ intention to transfer her house to her son, Peter. Since this was contrary to
what Cynthia had told him, Mr. Gizzo agreed to a meeting with Mr. Rohde and Mrs. Tsairis
outside the presence of her children. The meeting took place on Friday. Over the course of three
hours, the two lawyers reviewed the possibilities as far as her estate was concerned. He never
doubted her competency. She emphasized that she loved all of her children. But she was clear
and unequivocal in her desire to have her son Peter get the house because her daughters were
financially set. It appeared to him that she wanted to avoid antagonizing her children. Mr. Gizzo
advised her against disinheritance of her children in order to avoid fights over her estate. He told
her that he would step away from the matter because of her involvement with Mr. Rohde, but she
should think about what to do over the coming weekend.
The conclusions of Mr. Rohde and Mr. Gizzo about Mrs. Tsairis’ “intent” are confirmed
by the recollection of Denise, the youngest daughter. Denise recalls that in the spring of 2008,
she spoke with her mother who was concerned about her health and her house. She wanted Peter
to stay in the house if something happened to her. Denise noted that Peter had taken care of his
parents and maintained the house after he moved back in with his parents in 2001 or 2002.
Cynthia Bazan also offered extensive testimony on this issue. She confirmed receipt of a
letter from Mr. Rohde dated June 25, 2008, demanding the return of her mother’s Will, Power of
Attorney and jewelry. She spoke to her mother who advised her that Mr. Rohde was retained by
her brother, Peter. Her mother came over and looked at her Will. Mrs. Tsairis told her to
disregard the letter as she was not doing another Will. Cynthia Bazan was not concerned at that
time as she was sure her mother could handle her own affairs.
Despite her stated belief in her mother’s independence, Cynthia proceeded to make an
appointment with Mr. Gizzo. At this meeting, her mother advised Mr. Gizzo that she wanted to
transfer the house. Mrs. Tsairis advised Mr. Gizzo about the involvement of Mr. Rohde. Mr.
Gizzo then insisted on calling Mr. Rohde and having a meeting in order to discuss the same.
Cynthia confirms the lawyers’ joint meeting with her mother. She claims her mother felt
that the lawyers were trying to force her to sign papers so that everything would go to Peter. I
find this testimony incredible. It is difficult to understand how two lawyers (referred by
interested parties- Mr. Rohde by Peter and the Mr. Gizzo by Cynthia – who both represent Mrs.
Tsairis) would attempt to coerce Mrs. Tsairis into giving everything to her son to the exclusion
of the rest of the family. There is absolutely no logical support offered by Cynthia as to why her
mother would make such a statement. There is no evidence offered that Mr. Gizzo was a friend
of Peter or that he was not acting in the best interest of Mrs. Tsairis. Although Mr. Gizzo was
contacted by Mrs. Bazan, he was never paid by anyone and had no incentive to attempt to
influence the decision of Mrs. Tsairis in any way.
On the Sunday following the Gizzo/Rohde meeting, Cynthia claims that Mrs. Tsairis left
her house early in the morning because Peter was threatening her. She was picked up by a
neighbor and brought to Cynthia’s house. This testimony is not corroborated by other witnesses.
Mr. Suberman, the neighbor who allegedly picked up Mrs. Tsairis at 6:00 a.m. on a Sunday
morning was not produced at trial. According to Cynthia, this episode provided the impetus for
the removal of Mrs. Tsairis from her home and an extended stay with her friends, the Fischers.
Rather than contact Mr. Gizzo or Mr. Rohde to obtain information as to the outcome of
their meeting with her mother or make an appointment so that Mrs. Tsairis could make a
decision in concert with her counsel, Cynthia chose to seek yet another lawyer referral. This
raises an inference of manipulation by Cynthia. She called Mr. Rosenkranz, the scrivener of
Mrs. Tsairis’ 2000 Will, and told him that her mother wanted to deed her interest in 53
Povershon Road to Cynthia. He recommended Mr. Broder. Clearly, Cynthia sought to influence
her mother by failing to follow up with Mr. Rohde and selecting a lawyer who had worked for
her in the past and was a friend of the Fischers, her close family friends.
When Cynthia initially called Mr. Broder, she neglected to mention the alleged attempts
by Peter to have the property transferred to him, the consultations with Mr. Rohde and Mr.
Gizzo, or the joint meeting with counsel; she simply advised that her mother wished to transfer
the property to her. This again negatively impacts her credibility.
At the meeting on the following Monday, it is Cynthia’s recollection that Mrs. Tsairis
advised Mr. Broder that she wished to transfer the house to her daughter Cynthia in the presence
of Cynthia and her husband. Mrs. Tsairis then met with Mr. Broder alone. When they returned,
Mrs. Tsairis advised that she wished to sign the property over to the Bazans because she was
afraid Peter might make her do something that she did not want to do. In essence, she wanted to
do in life what she already would do after her death: give the property to John and Cynthia
Bazan.
Neil H. Broder, Esq., also testified as to the circumstances surrounding the execution of
the deed. He is a solo practitioner admitted in New Jersey since 1972. His practice is primarily
real estate and corporate law. He was recommended to Mr. and Mrs. Bazan by Jack Rosenkranz.
He recalls that Cynthia had questions about a deed and her mother’s welfare. He met with Mr.
and Mrs. Bazan and Mrs. Tsairis on Monday, July 21, 2008. It is very clear that he was retained
by Mr. and Mrs. Bazan to represent their interests. Mrs. Tsairis asked him to transfer her
property to the Bazans because she was afraid of her son Peter. He cursorily reviewed a package
which included a Deed, Will and other documents. Mr. Broder met with Mrs. Tsairis privately,
and she advised Mr. Broder that she was not represented by counsel. Mrs. Tsairis told him that
she wanted to transfer the property to Cynthia because this is what she did in her Will. He
concluded that she wanted to do in life what she already planned to do in death.
Mrs. Tsairis signed a blank deed on July 21, 2008, and he notarized the unfinished form.
His secretary completed the deed and he hand carried it to the Register’s Office for filing on July
22, 2008. He wrote a letter to Mr. Rohde and Mr. Gizzo dated July 22, 2008, in which he
indicated that there had been efforts to obtain control of Mrs. Tsairis’ property and she had
voluntarily deeded her real property to his clients, Cynthia and John Bazan. It is in light of these
findings of fact that the court makes its conclusions of law, as discussed below.
IV. Legal Analysis
a. July 21, 2008 transfer of 53 Povershon Road, Nutley, New Jersey
The court finds the July 21, 2008 deed transferring 53 Povershon Road, Nutley, New
Jersey to Cynthia and John Bazan was the product of undue influence and, therefore, the deed is
not valid or enforceable. The court finds that a presumption of undue influence existed, and
Cynthia has failed to rebut the presumption by clear and convincing evidence.
This claim arises out of the transfer of this real property to Cynthia during her lifetime
and Peter’s assertion that this transfer was the result of undue influence. Undue influence is
mental, moral or physical persuasion so powerful that it has destroyed the free agency of a
testator by preventing the testator from following the dictates of his or her own mind and will
and instead being caused to accept the domination and influence of another. In re Niles Trust,
176 N.J. 282, 299 (2003). See also Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (N.J.
1981) (citing In re Neuman, 133 N.J.Eq. 532, 534 (E. & A. 1943)). “Not all influence is ‘undue’
influence... Each case of this nature must be governed by the particular facts and circumstances
attending the execution of the Will [or deed] and the conduct of the parties who participated in
order to determine if the coercion exerted was ‘undue.’ “In re Livingston’s Will, 5 N.J. 65, 73
(1950), citing In re Raynolds, 132 N.J. Eq. 141, 152 (Prerog. 1942); In re Nixon, 136 N.J. Eq.
242, 245 (E. & A. 1944). Specifically, the influence must be such as, “to destroy the testator’s
free agency and to constrain him to do what he would not otherwise have done...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.” In re Livingston’s Will, 5 N.J. 65, 73 (1950).
“Undue influence is exerted where a testator is coerced to do that which he would not
have done if left to himself, Gellert v. Livingston, 5 N.J. 65 (1950), or where there is importunity
which cannot be resisted and is yielded to for the sake of peace (Den d. Trumbull v. Gibbons, 22
N.J.L. 117, 136, 158 (Sup. Ct. 1849)). The clarifying test of the matter, as laid out in Wingrove
v. Wingrove, 11 P.D. 81 (High Court 1885), is whether the testator's mind, when he made the
Will, was such that, had he expressed it, he would have said: "This is not my wish, but I must do
it." In re Estate of Weeks, 29 N.J. Super. 533, 542 (App. Div. 1954).
Mere persuasion, suggestions, or the possession of influence and the opportunity to exert
it are not enough. In re Will of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992). The influence
must be such that it destroys the testator’s free agency and to cause him to dispose of his
property not by his own desires, but instead by the will of another, which the testator is unable to
overcome. Id. at 528-529.
“There is a legal presumption that the testatrix was of sound mind and competent when
she executed the [document] and the burden of proving undue influence is ordinarily upon the
person asserting it and it must be clearly established.” Gellert v. Livingston, 5 N.J. 65, 71 (1950).
However, this burden may be shifted by the trigger of a rebuttable presumption of undue
influence. Unlike undue influence regarding a Will, the presumption of undue influence
regarding an inter vivos transfer does not require the existence of suspicious circumstances. “In
respect of an inter vivos gift, a presumption of undue influence arises when the contestant proves
that the donee dominated the Will of the donor, Seylaz v. Bennett, 5 N.J. 168, 172 (1950);
Haydock v. Haydock, 34 N.J.Eq. 570, 574 (E. & A. 1881), or when a confidential relationship
exists between donor and donee, In re Dodge, 50 N.J. 192, 216 (1967); Mott v. Mott, 49 N.J. Eq.
192, 198 (Ch.1891).” Pascale v. Pascale, 113 N.J. 20, 30 (N.J. 1988) emphasis added.
Underlying the absence of a requirement of showing suspicious circumstances with an inter
vivos gift is the belief that a living donor is not likely to give to another something that he or she
can still enjoy. Pascale v. Pascale, 113 N.J. 20, 30 (N.J. 1988).
When the presumption of undue influence arises from an inter vivos gift, the donee has
the burden of showing by clear and convincing evidence 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.” Pascale v. Pascale, 113 N.J. 20, 31 (N.J. 1988) (citing In re Dodge, 50
N.J. 192, 227 (1967)).
Such a presumption is triggered in this matter, and clear and convincing evidence has not
been produced to overcome the presumption. A determination of the validity of the July 21,
2008 deed requires a closer examination of the testimony of the principals involved in the
preparation and execution of the same: Peter Tsairis; Christopher G. Rohde, Esq.; John Gizzo,
Esq.; H. Neil Broder, Esq.; and Cynthia Bazan.
While Peter Tsairis makes a gruff and somewhat tough physical appearance, he testified
calmly and in control at all times. Based on his demeanor on the stand and his explanation as to
the family dynamics, I find him to be a credible witness regarding his mother’s desire to transfer
the house to him. I also find the testimony of the attorneys Christopher Rohde and John Gizzo to
be credible. When presented with a difficult situation respecting their elderly client, these
attorneys acted appropriately by communicating with each other as to possible concurrent
representation, coordinating their counsel and advice to Mrs. Tsairis, and taking substantial time
and significant precautionary measures to ensure Mrs. Tsairis understood her decisions and was
free from any undue influence.
I find that there was a confidential relationship between Mrs. Tsairis and Cynthia Bazan
in 2008. Mrs. Tsairis granted Cynthia a power of attorney dated May 23, 2000. There is
uncontested testimony that Cynthia generally took care of her mother’s medical and legal
matters. Furthermore, Cynthia had possession of the original power of attorney and her mother’s
Will. I find that this confidential relationship, in the context of an inter vivos gift or transfer
creates a presumption of undue influence with respect to the transfer of 53 Povershon Road to
Cynthia Bazan by deed dated July 21, 2008.
To overcome this presumption of undue influence, it is incumbent upon the Defendants to
establish the validity of the gift by showing clear and convincing evidence that no deception was
practiced therein, that no undue influence was used, that all was fair, open and voluntary, and
that it was well understood. See In re Dodge, 50 N.J., 192, 227 (1967). New Jersey case law
further provides that if a donor is dependent on and makes an improvident gift to the donee that
strips the donor of virtually all of her assets, a presumption arises that the donor did not
understand the consequence of her act. See Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). As
noted, it is undisputed that the house was Mrs. Tsairis’ major asset and the Broder deed stripped
her of ownership of the same.
Cynthia relies upon her own testimony and the testimony of Mr. Broder to overcome the
presumption. I find Cynthia Bazan not to be a credible witness, particularly regarding the
alleged motives of Mr. Gizzo and Mr. Rohde to influence her mother and the allegations of
violence or threats by Peter Tsairis. This testimony was clearly self-serving and unsupported by
the record. I conclude from Cynthia’s testimony that there was incentive to have her mother
transfer this property to her to the exclusion of her siblings. Cynthia explained that she has been
involved in multiple accidents and has incurred substantial medical bills. There have been
claims filed for unpaid medical bills and charge accounts. If solely owned by Cynthia, the real
property would provide a substantial asset to the Bazans.
When a presumption of undue influence is triggered with respect to an inter vivos
transfer, the donee has the burden by clear and convincing evidence of proving there was not
undue influence. There is ample evidence to support the conclusion that Mrs. Tsairis’ free will
was dominated and influenced with respect to her execution of the deed in favor of Cynthia
Bazan. Mr. Rohde testified that he was told by Mrs. Tsiaris that Cynthia was attempting to
influence her decision and he concluded from his own observations that this was the case. The
outcome of the attorney meetings further supports this finding. Mr. Rohde very carefully met
with Mrs. Tsairis on three separate occasions, explored her estate plan and concluded that she is
acting on her own free will. Cynthia was not physically present during the initial conference
with Mr. Rohde nor was she present at the joint meeting with Mr. Gizzo and Mr. Rohde. Both
lawyers represented Mrs. Tsairis’ interests and they concluded that she wanted to transfer the
property to her son Peter for what appeared to be valid reasons. However, when Cynthia was
present at the Broder conference, her mother expressed a desire to transfer the property to
Cynthia based on Cynthia’s concern that Peter would put her in nursing home. There is no
credible support in the record for any such threat by Peter. It is more likely that Cynthia
overcame her mother’s free will and convinced her to make this transfer.
The facts are clear, and this evidence is very compelling– when Mrs. Tsairis met with her
attorneys out of the presence of Cynthia, including counsel initially contacted by Cynthia, she
wanted to transfer the property to Peter. When she met with Cynthia’s attorney, along with
Cynthia, she wanted to transfer the property to Cynthia. More specifically, after several
meetings with Mr. Rohde, Mr. Gizzo, or both of them together over a period of weeks, Mrs.
Tsairis intended to leave her assets to Peter. She met with both Mr. Gizzo and Mr. Rohde on
Friday, July 18, 2008 for approximately three hours. After the weekend, she was taken on
Monday July 21, 2008 by Cynthia to a lawyer selected by Cynthia, in a short meeting; she
executed a blank deed favoring Cynthia. On those facts, Cynthia has not rebutted the
presumption of undue influence by clear and convincing evidence. To the contrary, those facts
provide support for the conclusion that Cynthia Bazan unduly influenced her mother.
This transfer was not fair, open or voluntary. Mrs. Tsairis could not have adequately
understood the consequences of her signature on this deed. Mr. Broder moved so quickly that he
had Mrs. Tsairis execute a blank deed before he had the opportunity to review the documents
prepared by Mr. Rohde or she had an opportunity to thoroughly review the document. As the
result of the transfer of the property to Cynthia, Mrs. Tsairis gave up her entire interest in the
property which resulted in Cynthia having more control over her mother’s property than the
transfer to Peter and retention of a life estate suggested by Mr. Rohde. After considering a
transfer to Peter and the retention of a life estate, it is illogical to assume that Mrs. Tsairis would
voluntarily strip herself of ownership of this property without some manipulation by Cynthia.
Both sides acknowledge that Mrs. Tsairis was a prodigious note-taker. Seven pages of
notes allegedly written by Mrs. Tsairis between July and October of 2008 dealing with these
events were introduced into evidence without objection. The earlier notes confirm a meeting with
Mr. Rohde and Cynthia’s concern about the preparation of a new will while Mrs. Tsairis was
living at home. The decedent writes that Cynthia and John wanted to enforce their rights under
her 2000 Will. It appears as though her daughter took a loan for $20,000 to pay for her late
husband’s gambling debts. It also appears that Mrs. Tsairis believes that she was owed money by
Cynthia from her brother’s estate. Despite these concerns, the notes express a clear desire to
complete the “Rohde” Will in July of 2008. It also appears that Mrs. Tsairis did not want John
and Cynthia involved in this process.
In October of 2008, the tone and tenor of the notes dramatically changed. Mrs. Tsairis is
critical of Peter and explains that she went to Peter’s lawyer only because of the “gun threat” to
Cynthia, but she did not sign any papers with Mr. Rohde. She indicates that she never would
leave everything to Peter because his wife, Carol, would get half. Mrs. Tsairis indicates that the
Will should not be changed and John and Cynthia should inherit everything.
It is difficult to reconcile these writings except by virtue of the different time frame.
When in the company of the Fischers and away from Peter in October, she writes negatively
about her son. When living at home in July, she writes less about what she wants to do and more
about Cynthia’s concern that she do what Cynthia wants. The notes support the court’s
conclusion that Cynthia undertook efforts to control her mother while she lived at home when
she writes that Cynthia wants to enforce her rights under her 2000 Will. The later comments in
October, 2008 are made when Mrs. Tsairis is no longer living at home and does not have any
contact with her family except for Cynthia. These portions of the notes are not consistent with
the testimony of the siblings regarding Peter and his involvement with his mother. I find the
October 2008 notes not to accurately represent the intention of Mrs. Tsairis.
b. Revocation of the May 23, 2000 Will
The validity of the May 23, 2000 Will is challenged on the ground that it was revoked by
Mrs. Tsairis, or in the alternative, that the equitable doctrines of estoppel or unclean hands bar
Cynthia from arguing against revocation.
A testator can revoke a Will or any part thereof by taking certain actions, as delineated in
both the prior version and the new version of N.J.S.A. 3B:3-13 effective February 27, 2005. The
latter spells out the methods of revocation in more detail. A testator can execute a subsequent
Will which revokes a prior Will, either expressly or by inconsistency, N.J.S.A. 3B:3-13(a). In
addition, a testator may revoke a Will by performing a revocatory act upon the Will. Such acts
include burning, tearing, canceling, obliterating, or destroying the document or any part of it,
with the intent and for the purpose of revoking the Will. N.J.S.A. 3B:3-13(b). These acts may
be performed by the testator or by another person in his conscious presence and by his direction.
Id. The overriding concern is whether the testator intended the revocation by the act at issue.
Will of Nassano, 199 N.J. Super. 414 (App. Div. 1985); Collard v. Collard, 67 A. 190 (Prerog.
1907); Hilyard v. Wood, 71 N.J. Eq. 214 (Prerog. 1906).
Revocation of a Will can only be accomplished by one of the methods provided by
statute. In re Estate of Garver, 135 N.J. Super 578, 580 (App. Div. 1975). The court also notes
that presently, N.J.S.A. 3B:3-14 also provides that revocation of provisions benefiting the former
spouse occurs upon divorce by operation of law. In re Will of Reilly, 201 N.J. Super. 306, 311
(App. Div. 1985). “There can be no revocation, unless there are both the act demanded by the
statute and the intention stated.” In re Estate of Spiegelglass, 48 N.J. Super. 265, 268 (App. Div.
1958). Pursuant to N.J.S.A. 3B:3-3, “Although a document or writing added upon a document
was not executed in compliance with N.J.S.A. 3B:3-2, the document or writing is treated as if it
had been executed in compliance with N.J.S.A. 3B:3-2 if the proponent of the document or
writing establishes by clear and convincing evidence that the decedent intended the document or
writing to constitute: (1) the decedent’s Will; (2) a partial or complete revocation of the Will . . .”
The state of mind of the testator must be taken into account when determining if he or she
intended to revoke or partially revoke a Will. In re Estate of Spiegelglass, 48 N.J. Super. 265,
272 (App. Div. 1958). In Spiegelglass, the conversation between the testator and his attorney
was admissible and relevant to the testator’s state of mind, thus showing that the testator did not
intend to revoke his Will by making pencil marks on the signatures. Id. at 275.
After the initial meeting with his client, Mr. Rohde wrote to Cynthia on June 25, 2008,
informing her that Mrs. Tsairis had consulted with him regarding her estate plan, and he
requested that she return her mother’s original Will. Cynthia confirms that she received this
letter but she did not turn the document over to Mr. Rohde. During the course of the July 18,
2008 meeting between Mr. Rohde, Mr. Gizzo and Mrs. Tsiaris, the attorneys indicate that Mrs.
Tsairis stated that she did not want Cynthia to get everything. Rather, she said she wanted Peter
to get the house, which was everything, for all intents and purposes. Mr. Rohde never saw his
client again after this meeting. After receiving Mr. Broder’s July 22, 2008 correspondence
advising of the transfer of 53 Povershon Road to Cynthia, Mr. Rohde wrote to Mr. Broder on
July 23, 2008, and advised that the May 23, 2000 Will had been revoked by Mrs. Tsairis.
Plaintiffs claim that this statement by Mrs. Tsairis along with Mr. Rhode’s July 23, 2008 letter
effectively revoked the 2000 Will.
The Court finds there is no legally effective revocation of the 2000 Will. There are two
ways to revoke a Will – either by subsequent writing or by revocatory action. N.J.S.A. §3B:3-3
and N.J.S.A. 3B:3-13. In evaluating whether any particular action has revocatory intent, the
Court will look to the state of mind and intent of the testator. In this case, there is insufficient
action to support a finding of revocation, regardless of Mrs. Tsairis’ state of mind or desire to
revoke her previous Will. There is a writing expressing Mrs. Tsairis’ purported desire to revoke
her previous Will written by Mr. Rohde, but not by Mrs. Tsairis. Mrs. Tsairis was not copied
with the letter. There is no evidence that Mrs. Tsairis directed this correspondence to be written
by her attorney, nor is there any evidence that she even saw it or knew of its existence. The
Court cannot mandate revocation of the 2000 Will on the strength of this letter. The relevant
statutes and case law do not allow for oral revocation of a Will. In In re Alleged Will of Macool,
the Appellate Division recently denied probate to a document offered as a Will under N.J.S.A.
3B:3-3, because the decedent had not seen the writing. 416 N.J. Super. 298, 311 (App. Div.
2010). By analogy, a revocation not signed or even seen by the testator under N.J.S.A. 3B:3-3
must also fail. There must be a matching of action and intent. In this case, there may have been
revocatory intent, but there is no corresponding action by Mrs. Tsairis or at her express direction.
Alternatively, plaintiffs argue that the defendants should be estopped from arguing that
the Will was not revoked, because Mrs. Tsairis was “prevented” from meeting with Mr. Rohde
and accomplishing a revocatory act by her “confinement” at the Fischers’ House.
The events which occurred after the meeting with Mr. Rohde and Mr. Gizzo are curious
at best. According to Cynthia, Mrs. Tsairis left her home on Sunday, July 20, 2008 and was
found walking to Cynthia’s house by neighbors. Cynthia claims her mother left because of
threats by Peter. She was taken to the home of Cynthia’s friends, Mr. and Mrs. Fischer, where
she remained until October, 2008. Based on the testimony of Dolores Fischer and Fred Fischer,
Jr., I find that Mrs. Tsiaris remained at their home without any coercion. I also note that there
was uncontradicted testimony of a welfare check by the local police who did not find any
evidence of wrongdoing. There is no evidence upon which I can conclude that the extended visit
of Mrs. Tsiaris at the Fischers’ home was against her will.
Plaintiffs’ equitable arguments that Cynthia should be barred from arguing against
revocation by virtue of either equitable estoppel or some form of the unclean hands doctrine of
the Will are unconvincing.
The doctrine of equitable estoppel is founded on the fundamental duty of fair dealing.
“The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of
action on which another party relied to his detriment. To establish estoppel, plaintiffs must show
that defendant engaged in conduct, either intentionally or under circumstances that induced
reliance, and that plaintiffs acted or changed their position to their detriment.” Knorr v. Smeal,
178 N.J. 169, 178 (2003). More specifically, the elements of equitable estoppel were stated in
Clark v. Judge, 84 N.J. Super. 35, 54 (Ch. Div. 1964):
1. Conduct amounting to a representation or a concealment of material
facts;
2. Facts known to the party allegedly estopped, or at least the
circumstances must be such that knowledge of them can necessarily be
imputed to him;
3. The truth concerning the facts must be unknown to the party claiming
the estoppel at the time when acted upon by him;
4. The conduct must be done with the intention that it be acted upon by the
other party; and
5. The conduct must be relied upon by the other party, and must be led to
act upon it.
In other words, equitable estoppel is analogous to fraud by conduct.
None of those elements are present here – plaintiffs have not articulated any conduct by
Mrs. Bazan that amounted to a representation or concealment of facts, nor can they point to any
“reliance” on their part as a result of any such conduct. Unsubstantiated allegations that Mrs.
Tsairis was held against her will at the home of friends of the Bazans is not sufficient to support
an estoppel argument. Moreover, equitable estoppel is an affirmative defense, which must be
proven by the party asserting it, and it does not make any sense in this context.
The doctrine of unclean hands is similarly unavailing in the context of this case. The
plaintiffs’ allegations that the defendants engaged in some sort of conspiracy to keep Mrs. Tsairis
sequestered in the Fischers’ home, so as to prevent her from renouncing the 2000 Will, are not
supported by anything in the record. Therefore, there is no basis to bar Cynthia from arguing
against revocation of the Will, because Plaintiffs have not established she has done anything
wrong in connection with Mrs. Tsairis’ extended stay at the home of the Fischers. Furthermore,
both unclean hands and equitable estoppel are irrelevant and inapplicable in this case for the
purpose asserted. A party alleging revocation of a Will bears the burden of proving that
revocation, unless there is a presumption triggered or the burden is otherwise shifted. Barring
Cynthia from arguing against revocation is not helpful when the Plaintiffs bear the burden, and
have not met that burden, as discussed previously.
c. Undue influence in the execution of the May 23, 2000 Will
There is a presumption the will executed May 23, 2000 was the product of undue
influence. This presumption has not been rebutted by a preponderance of the evidence.
Therefore, the will is invalid, and the Estate of Georgia Tsairis must pass under the laws of
intestacy.
There are two necessary elements to raise a presumption of undue influence with regard
to disposition under a Will: A confidential relationship between the testator and the beneficiary,
and the presence of “suspicious circumstances.”
1. Confidential Relationship
The first element necessary to raise a presumption of undue influence, a "confidential
relationship" between the testator and a beneficiary, arises where trust is reposed by reason of the
testator's weakness or dependence or where the parties occupied relations in which reliance is
naturally inspired or in fact exists. Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (N.J.
1981), citing In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943).
“The essentials of a confidential relationship are a reposed confidence and the dominant
and controlling position of the beneficiary of the transaction.” In re Codicil of Stroming, 12 N.J.
Super. 217, 224 (App. Div. 1951). "It is clear that the dominance must be of the mind, and the
dependence must be upon the mind rather than upon the hands and feet of the donee." Id. citing
Chandler v. Hardgrove, 124 N.J. Eq. 516 (Ch. 1938). A confidential relationship “exists when
the circumstances make it certain that the parties do not deal on equal terms, but on the one side
there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably
reposed. It does not exist where the parties deal on terms of equality” Id.
“The nature of that dominant confidential relationship is difficult of exact definition or
delimitation. The relationship includes not only all 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. It comprehends all cases where ‘the relations
between the parties appear to be of such a character as to render it certain that they do not deal on
terms of equality, but that either on the one side from superior knowledge of the matter derived
from a fiduciary relation, or from over-mastering influence; or on the other from weakness,
dependence or trust justifiably reposed, unfair advantage is rendered probable.’ Cowee v.
Cornell, 75 N.Y. 91 (quoted in Mott v. Mott, 49 N.J. Eq. 192 (Ch. 1891) and in other cases in
this state). It exists when the parties occupy ‘relations, whether legal, natural or conventional in
their origin, in which confidence is naturally inspired, or, in fact, reasonably exists; where the
parties hold positions in which one is more or less dependent on the other.’ Slack v. Rees, 66
N.J. Eq. 447 (E. & A. 1904). Among the confidential relationships natural in their origin, are, of
course, those of parent and child.” In re Estate of Fulper, 99 N.J. Eq. 293, 314 (Prerog. Ct.
1926).
There have been cases in which the court found confidential relationships to exist
between a parent and their child. See, e.g. In re Estate of Penna, 322 N.J. Super. 417 (App. Div.
1999) (daughter and mother); Pascale v. Pascale, 113 N.J. 20 (1988) (father and son). In Pascale
and Fulper, the courts found parent-child relationships to be among the most natural confidential
relationships. Id. and Fulper, 99 N.J. Eq. 293 (1926). Specifically in Pascale the court noted,
“Among the most natural of confidential relationships is that of parent and child.” Pascale v.
Pascale, 113 N.J. at 34 (1988).
There is evidence to support the finding of a confidential relationship between the
decedent and Cynthia Bazan with respect to the 2000 Will. Pam Conry testified that her mother
was in poor health in May, 2000. She was about to undergo open heart surgery. Cynthia was
unemployed. She saw her mother almost every day and had an extraordinarily close relationship
with her mother. Her mother was dependent on Cynthia for her care. In a weakened physical
condition, Mrs. Tsairis is referred to Mr. Rosenkranz, who is Cynthia’s attorney. I find there was
a confidential relationship with her daughter Cynthia, upon whom she relied for care and
transportation, and who was a near-daily visitor to Mrs. Tsairis. Mrs. Tsairis was weakened
physically by a number of ailments, including a heart condition and her need for heart surgery in
the same month the Will was executed. Also, Mrs. Tsairis executed a power of attorney in favor
of Cynthia Bazan at or near the time of the Will execution, May of 2000.
2. Suspicious Circumstances
“Circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise
to a presumption of undue influence, and there is cast upon the proponent the burden of coming
forward with evidence in quality and force sufficient to dispel the presumption. In a confidential
relation slight circumstances may shift the burden.” In re Will of Blake, 21 N.J. 50, 55-56
(1956).
"It has been said that in order to shift the burden of proof to a proponent of a Will, on an
issue of undue influence, there must be some other elements added to proof that the testator's
mind was enfeebled so that it was difficult to resist improper influence and the establishment of
intimate confidential relationship. It is said that 'slight circumstances’ are sufficient to be added.
Among the elements which may be thus added, which have been mentioned in the authorities,
are these: (1) the initiation of proceedings for the preparation of the instrument; (2) participation
in such preparation; (3) presence at the execution of the Will; (4) efforts to exclude the natural
objects of testator's bounty from his society; (5) concealing the making of the Will; and (6)
taking possession of the Will.” In re Estate of Raynolds, 132 N.J. Eq. 141, 148 (Prerog. Ct.
1942), citing In re Barnett, 2 N.J. Misc. 135, 142 (Cty. Ct. 1924).
Similarly, suspicious circumstances exist surrounding the execution of the May 2000
Will. The unrefuted testimony is that Cynthia had substantial involvement in the circumstances
of the execution of the 2000 Will. It left everything to Cynthia Bazan. It was drafted and
prepared by a part-time New Jersey attorney who also represented Cynthia Bazan, and who was
recommended to Mrs. Tsairis by Mr. Fischer, who is a friend and co-worker of Cynthia’s.
Cynthia took possession of the Will. Also, testimony at trial described a “group-will” scenario,
in which multiple people, including the Bazans and Mr. and Mrs. Tsairis all signed Wills
prepared by Mr. Rosenkranz at the same time and received substantial benefits. These facts
constitute suspicious circumstances, which need only be “slight” in conjunction with a finding of
a confidential relationship to trigger a presumption of undue influence.
3. Rebutting the Presumption
“In this jurisdiction, once a presumption of undue influence has been established the
burden of proof shifts to the proponent of the Will, who must, under normal circumstances,
overcome that presumption by a preponderance of the evidence.” Haynes v. First Nat’l State
Bank, 87 N.J. 163, 177-178 (1981). “There are cases where the presumption of undue influence
is so heavily weighted with policy that the courts have demanded a sterner measure of proof than
that usually obtaining upon civil issues. That is the situation, for instance, where an attorney
benefits by the will of his client, and especially where he draws it himself.” In re Estate of
Weeks, 29 N.J. Super. 533, 539 (App. Div. 1954), citing In re Babette Davis' Will, 14 N.J. 166
(1953); In re Hopper's Estate, 9 N.J. 280 (1952); In re Heim's Will, 136 N.J. Eq. 138 (E. & A. In
this case, Plaintiff argues the presumption of undue influence is coupled with strong policy
considerations and therefore a higher burden of proof as to the absence of undue influence is
imposed. In re Will of Landsman, 319 N.J. Super. 252 (App. Div. 1999); Haynes, supra; In re
Davis’ Will, 14 N.J. 166 (1953).
In Haynes v. First Nat’l State Bank of New Jersey, 87 N.J. 163 (1981), the Supreme
Court imposed a significant burden of proof upon the advocates of a Will where a presumption
of undue influence had arisen because the testator’s attorney placed himself in a conflict of
interest and professional loyalty between the testator and the beneficiary. In re Will of
Landsman, 319 N.J. Super. 252 (App. Div. 1999), the Appellate Division noted that the essence
of the principle of law is the need for a lawyer of independence and undivided loyalty, owing
professional allegiance to no one but the testator, and required clear and convincing proof to
overcome the presumption. In Landsman, the attorney, Cochi, referred clients to Greenwald, the
executor and a beneficiary of Mr. Landsman’s Will. Greenwald was also Cochi’s accountant.
Evidence indicated that Greenwald prepared the notes upon which Landsman’s Will was drafted.
Landsman only read the will on the day of signing and Greenwald supplied the notary and a
witness, both of whom had some business and personal relationship with Greenwald. Id. 265-66
Under these circumstances, the court found that Cochi failed to give Landsman his undivided
loyalty and independent advice and imposed a clear and continuing standard of proof on
Greenwald to overcome the presumption of undue influence. The present case is distinguishable
from Landsman. Cynthia and Mr. Rosenkranz did not have an ongoing professional relationship
from which he benefited financially. Mr. Rosenkranz did not obtain information for the Will
from Cynthia. There may be questions raised as to the thoroughness of his representation. But,
it does not appear that his independence and loyalty were materially affected by his
representation of multiple family members. Therefore, defendants need only overcome the
presumption by a preponderance of the evidence.
“In the case of a presumption of undue influence, apparently because the presumption is
fortified by policy, the proponent must, according to the language of the cases, prove, to the
satisfaction of the trier of fact, that there was no undue influence. (Internal citations omitted). In
connection with this presumption, unlike other presumptions, the courts do not speak as to the
burden of going forward with the evidence. However, we conclude, the moment this
presumption is erected, both the burden of proof (which otherwise would have been upon the
contestant, Gellert v. Livingston, 5 N.J. 65 (1950)) and the burden of going forward with proof,
shift to proponent and are identical and coincident. To meet each of these assignments, the
proponent must establish by the same quantum of proof -- that is, by a preponderance of the
proof -- that there is no undue influence.” In re Estate of Weeks, 29 N.J. Super. 533, 539 (App.
Div. 1954).
“There is another matter to be borne in mind. The presumption of undue influence is of
that class of presumptions by which a litigant (here the proponent) is called upon to make known
facts more easily accessible to him than to his adversary. See generally, Morgan, 47 Harvard L.
Rev., at p. 77; cf. Brinkman v. Urban Realty Co., Inc., 15 N.J. Super. 354 (App. Div. 1951).
Therefore, where a presumption of undue influence is created, the law puts upon proponent the
burden of coming forward with credible "evidence satisfactorily explaining his conduct" and
stating what he knows as to the making of the Will.” In re Estate of Weeks, 29 N.J. Super. 533,
540 (App. Div. 1954), citing In re Colton's Estate, 11 N.J. Misc. 410 (Prerog. 1933), aff’d on
other grounds, 115 N.J. Eq. 327 (E. & A. 1934), citing, in the Prerogative Court opinion, In re
Morrisey's Will, 91 N.J. Eq. 480 (Prerog. 1920); Brick v. Brick, 43 N.J. Eq. 167 (Prerog. 1887) -
- "a clear and natural explanation" – aff’d 44 N.J. Eq. 282 (E. & A. 1888). “This presumption,
unless countervailed by satisfactory evidence, controls as a conclusion of fact.” Here, the
presumption cannot be overcome by proponent's testimony, because her testimony was neither
"impeccable" nor "convincing." In re Barnett, 2 N.J. Misc. 135, 143 (Cty. Ct. 1924).
In this case, a presumption of undue influence has been triggered by the presence of a
confidential relationship and suspicious circumstances. The circumstances are not such as to
require Cynthia to overcome the presumption by clear and convincing evidence. She only must
overcome the presumption by a preponderance of evidence. However, Cynthia has not produced
evidence sufficient to overcome even this standard.
Cynthia offered the testimony of Jacob Rosenkranz, the drafter of Mrs. Tsairis’ 2000
Will. He is a semi-retired attorney admitted to practice in New Jersey in 1974. He worked as a
full time project manager for the Port Authority and maintained a part-time law practice out of
his house. He drafted Wills and handled real estate matters. He was referred by Fred Fischer,
Cynthia’s co-worker at the Port Authority. He recalls that Cynthia referred her parents and
others to him for the preparation of Wills. He met with the parties in May 2000 and then
proceeded to execute the instrument in question on May 23, 2000.
He does not have a file. Over 10 years have passed, and he has a very limited
recollection of this matter. He concedes that Mr. and Mrs. Tsairis were referred to him by
Cynthia and she made the arrangements for the meeting for her parents. He acknowledges that
the Bazans attended the meeting with the Tsairis’. While he recalls that there was no evidence of
overt influence exercised over Mrs. Tsairis by Cynthia at these two meetings, he also concedes
that he has no notes, no file, no information as to her medical condition, no clear recollection of
these short meetings and no explanation for the disinheritance of everyone in the Tsairis family
including the testator’s husband and all of her children except Cynthia. The court also notes his
failure to recognize any overt acts of undue influence is not surprising – in such cases, the
influence is almost always much more subtle, and not expressly demonstrated or discussed in the
room with the attorney, for obvious reasons.
I find that he was truthful in his limited recollection of these events but his testimony was
not helpful in addressing the essential issue. The absence of overt evidence of undue influence is
not unexpected and his limited recollection only serves to create more questions as to whether
Mrs. Tsairis fully understood what she was doing and whether this instrument truly was the
product of her free will. The burden falls on the proponent of the will to overcome the
presumption of undue influence, and Mr. Rosenkranz’s testimony was not helpful in any material
way to bolster Cynthia’s case that there was no undue influence.
Cynthia is described by several witnesses as a controlling kind of person who wanted
things done her way. She was able to control her mother, who referred to her as “the General”.
Mrs. Tsairis is generally described by her children as a person who was not weak or dependent.
However, Denise testified that she could be controlled and manipulated. Mrs. Tsairis was
described by Pam as a person who had opinions but could be influenced, particularly by Cynthia.
The court finds significance in the fact that this will was executed a matter of days before Mrs.
Tsairis underwent major cardiovascular surgery. It is quite likely that the decedent was in a
weakened physical and mental condition because of a serious and potentially life-threatening
operation. As previously noted, there is no doubt that Cynthia had a close relationship with her
mother, and the testimony indicates she was capable of exploiting that relationship to coerce her
33
mother to sign a will benefiting Cynthia and her husband entirely, and disinheriting the
decedent’s other children.
Furthermore, Cynthia’s testimony was not credible. Cynthia’s testimony that she did not
refer her mother to Mr. Rosenkranz is not credible. Her mother was ill in May 2000, and it
seems more likely that the impetus for the signing of the Wills was the pending surgery of her
mother. Cynthia’s testimony that she contacted Rosenkranz after a near fatal accident was
contradicted in cross examination and it was not true. She offered no believable explanation why
the distribution scheme was set forth in such an unusual manner (i.e. benefiting Cynthia’s
husband but not any of Mrs. Tsairis’ other children) and did not credibly address the fact that
Mrs. Tsairis was driven by Cynthia to a lawyer of Cynthia’s choosing, to execute a will
benefiting Cynthia and her husband to the exclusion of her other children, within days of
undergoing a major operation. The fact that Cynthia retained the decedent’s will, and would not
surrender it to her upon request some 8 years later is also significant in the court’s finding that
Cynthia did not overcome the presumption of undue influence.
It is true testators have the right to distribute amongst children unequally, or even
disinherit them entirely, see Benedict v. New York Trust Co., 48 N.J. Super. 286, 289 (Ch. Div.
1958), but in a situation such as this, in which a presumption of undue influence has been
triggered, the court considers it curious at best that no explanation was offered by Cynthia as to
why her siblings were excluded. There is no evidence of intra-family discord or of an
estrangement between the decedent and any of her children.
Defendants argue that the Will remained unaltered and unrevoked for 8 years and this
weighs against a finding of undue influence. Our courts have held that where a Will remains
unrevoked and unaltered while in the testator’s custody for some time after execution, the
presumption of undue influence may be overcome. See, e.g., In re Davis’ Will, 14 N.J. 166
(1953); In re Bartles’ Will, 127 N.J. Eq. 472 (E. & A. 1940). The facts in this matter do not
support such a conclusion. The Will was in the possession of Cynthia for the entirety of this
time period, and the testimony shows that Mrs. Tsairis did not have access to it. In fact, when
requested to produce it by Mr. Rohde, Cynthia refused. Therefore, the court is unable to give
any credence to this argument, and finds it does not help Cynthia overcome her burden by a
preponderance of the evidence as required.
Mrs. Bazan has not overcome the presumption of undue influence by a preponderance of
the evidence, which is her burden when a presumption of undue influence is triggered in the
context of a testamentary gift. The 2000 Will is invalid by virtue of undue influence exerted by
Mrs. Bazan on her mother, Georgia Tsairs.
IV. Conclusion
The 2008 deed transferring the decedent’s property at 53 Povershon Road in Nutley, New
Jersey is invalid. A presumption of undue influence was triggered by the presence of a
confidential relationship in the context of an inter vivos gift, and has not been rebutted by clear
and convincing evidence by Cynthia and John Bazan, who bear the burden. The Last Will and
Testament executed by Georgia Tsairis in May of 2000 was not revoked by the decedent before
her death, either expressly or through any indirect equitable manner. However, the 2000 Will
was invalid as the product of undue influence, because a presumption of undue influence was
raised by the presence of a confidential relationship and suspicious circumstances surrounding
the execution of the Will. Mrs. Bazan did not rebut that presumption by a preponderance of the
evidence, as is her burden in the context of a testamentary gift. Mrs. Tsairis died without a valid
Will, so her Estate shall be administered in accord with the laws of intestacy, and the court will
appoint an administrator to serve. To the extent any of the claims raised in the general equity
complaint survive this ruling, the proper party to pursue those claims is the Estate by and through
the Administrator. Mr. Rubas is directed to submit an appropriate order.
