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Tuesday, June 21, 2011

No Legally Effective Revocation of the Decedent's Will: I/M/O Estate of Tsairis, Conry v Bazan




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,


c. Whether Mrs. Tsairis executed her May 23, 2000 Will under undue


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


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


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


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


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


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


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.


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


"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


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.