3B:3-37 Residuary devise to two or more residuary devisees; death of one or more before testator

3B:3-37 Residuary devise to two or more residuary devisees; death of one or more before testator
When a residuary devise shall be made to two or more persons by the will of any testator, unless a contrary intention shall appear by the will, the share of any residuary devisees dying before the testator and not saved from the lapse by N.J.S. 3B:3-35, or not capable of taking effect because of any other circumstance or cause, shall go to and be vested in the remaining residuary devisees, if any there be, and if more than one, then to the remaining residuary devisees in proportion to their respective shares in the residue.

IN THE MATTER OF SUSAN KEETER A-0553-10T4 May 11, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0553-10T4

IN THE MATTER OF SUSAN KEETER, AN ALLEGED INCAPACITATED PERSON

Argued March 22, 2011 - Decided May 11, 2011

Before Judges Yannotti and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, P-184-10/S#224356.

Michael J. Fasano argued the cause for appellant Patricia D. Valentine (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Fasano, of counsel and on the brief).

Angela White Dalton argued the cause for respondent Susan Keeter (Zager Fuchs, P.C., attorneys; Ms. Dalton, of counsel and on the brief).

PER CURIAM

Plaintiff, Patricia Valentine, appeals from the dismissal of her complaint for guardianship of her mother, Susan Keeter, as an alleged incapacitated person. We affirm.

Plaintiff filed a complaint for guardianship for her mother based on her alleged incapacity on June 10, 2010. Keeter is age eighty-nine. In addition to Valentine, Keeter has a son, Richard.

On June 21, 2010 the court appointed Suzana Hot, Esq. as attorney for Keeter. Hot opposed the motion for guardianship at Keeter's request.

In support of her complaint for guardianship, Valentine produced sworn certifications from two doctors to support her position that Keeter was sufficiently incapacitated so as to require a full plenary hearing. An order to show cause scheduling a hearing was signed on June 10, 2010 to determine whether Keeter needed a guardian.

According to Keeter's treating physician, Dr. Jeanne Tomaino, Keeter suffers from dementia, uncontrolled diabetes, and atherosclerotic heart disease. Dr. Tomaino submitted a certification which the court characterized as a "fill in the blanks" form report. Dr. Tomaino noted that Keeter was not oriented to time or place, and she "cannot manage her medication or make informed health care decisions" and cannot manage her finances. Dr. Tomaino diagnosed Keeter with dementia, and stated that she was not capable of attending a court hearing due to "poor memory and inability to fully comprehend conversations."

Valentine also submitted a report from Dr. Jon Salisbury. Dr. Salisbury examined Keeter on May 25, 2010, and noted that Keeter could not name her medications or list her medical problems. He screened Keeter for cognitive impairment and determined that Keeter was "orientated to person, place and time" but "could not copy a shape or repeat a simple phrase." According to Dr. Salisbury, Keeter appeared "very comfortable" with Valentine managing her financial affairs. Dr. Salisbury opined that Keeter suffered from early dementia, and though "not completely incapacitated," has "significant areas of problems with cognition and her ability to handle her finances and extensive medication schedule." Dr. Salisbury suggested that as Keeter's illness was progressive, "[i]t would probably be in her best interest that [Valentine] be appointed guardian or at least [conservator]."

Keeter's court-appointed lawyer, Hot, met with Keeter twice, once at her son Richard's home in Freehold and once at Keeter's home in Englishtown. Hot described Keeter as "coherent and pleasant" and stated that Keeter explained that she had given Valentine her power of attorney and the two had handled her finances together for several years.

According to Keeter, in or around 2008, Valentine and Keeter had a falling-out after Valentine allegedly turned "mean and domineering" and siphoned funds from Keeter's accounts by writing checks in amounts significantly higher than Keeter instructed. Keeter advised Hot that she wanted to substitute Richard as her power of attorney.

Keeter conceded that she had been hospitalized for failing to take her medications properly. Though persons from the Visiting Nurse Association had been engaged at some point to oversee medication administration, Keeter dismissed them, believing she did not need their assistance. Keeter was adamant that "she did not need or want a guardian."

During the second meeting with Hot at Keeter's home in Englishtown, Keeter was again "adamant that she did not need or want a guardian." She indicated that she takes multiple pills and she relies on Richard to dispense her medicine because she did not trust Valentine to do so. Keeter could not remember the names of her medications, but claimed she remembers what they look like. Keeter rejected Hot's suggestion that she employ a visiting nurse or an aide.

Hot interviewed Richard and Valentine. According to Richard, Keeter was competent and did not need a guardian. He was "willing to be her agent and assist her in any and every way." Specifically, Richard claimed that he transports Keeter to and from doctors' appointments and other places Keeter likes to go.

Conversely, Valentine indicated to Hot that while Richard is indeed close to Keeter, her mother always "turn[s] to Valentine when she is ill." It is undisputed that Valentine handles Keeter's finances. Valentine noted her concern that Keeter spends her money so frivolously "that there will not be enough . . . to take care of [Keeter] as she begins to require more and more assistance." Valentine was also concerned that Keeter did not adequately watch her diet to control her diabetes or take her medications appropriately.

At Hot's request, Keeter was examined by Dr. Mark David Pass. According to Dr. Pass, Keeter demonstrated mild cognitive impairment. Keeter has "no deficits in attention, recall, language, praxis, or repetition" but displayed "mild visual-spatial perception difficulties." He found that Keeter had no need for assistance with activities of daily living but did require assistance driving and taking her medications.

Dr. Pass further opined that Keeter could understand her current health situation, and responded well to hypothetical medical emergencies. She was aware of her allergies to sulfa and penicillin, reported numerous hospitalizations, and knew what "all but [two] of her medicines are used for." Ultimately, Dr. Pass found that Keeter exhibited "mild signs of cognitive impairment and functional deficits" and "possible . . . manifestation of very early dementia." He claimed that she displayed "an excellent ability" to make decisions and, as a result, "has the capacity to make decisions regarding her health, financial, and family affairs" and "does not require a guardian at this time."

Based on her interviews with Keeter, Richard, Valentine, Dr. Tomaino and the reports of the three doctors, Hot included in the report a number of recommendations. Specifically, Hot noted that while the doctors disagreed over the extent of Keeter's competency, she needed "some assistance with her finances and with health care decisions." Hot further stated that it was in Keeter's "best interests to, at the very least, have a conservator appointed to handle her finances" and that, "with regard to her medical decision-making, it may be in her best interests to have a guardian of her person, but require that her requests and/or desires relative to her healthcare be considered and adhered to where appropriate." Finally, Hot stated that while her responsibility was to advocate on Keeter's behalf, and Keeter indicated her desire to oppose the guardianship action, she was not bound to advocate decisions "that are patently absurd or that pose undue risk of harm to the client."

On August 11, 2010, before the return date of the order to show cause and after the filing of Hot's report, Keeter hired private counsel to oppose the application.

On August 13, 2010, the return date of the order to show cause, Keeter, through her private counsel, waived testimony and the matter proceeded in a summary manner at the conclusion of which the court dismissed the guardianship complaint based on Hot's testimony and the affidavits submitted, having determined that plaintiff failed to meet her burden of proof by "clear and convincing evidence" that Keeter required a guardian.

I.

On appeal, plaintiff argues the court erred by failing to hold a hearing on the issue of Keeter's incapacity. She contends the court had an independent obligation under the parens patriae doctrine to hold a full plenary hearing where there was a serious dispute over Keeter's competency. We disagree.

An action for guardianship of an alleged incapacitated individual is governed by statute and court rule. N.J.S.A. 3B:12-24 to -29; R. 4:86(1)-(8). A person is incapacitated if (s)he "is impaired by reason of mental illness or mental deficiency to the extent that [s]he lacks sufficient capacity to govern [her]self and manage [her] affairs." N.J.S.A. 3B:1-2. A complaint for a determination of incapacity and for the appointment of a guardian must include affidavits of two physicians having the qualifications set forth in N.J.S.A. 30:4-27.2(t), or one such physician and a licensed practicing psychologist as defined inN.J.S.A. 45:14B-2, stating "the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions." R. 4:86-2(b)(7). The affidavits which discuss the results of an examination of the person occurring within thirty days of the filing of the complaint must express an opinion and prognosis about the fitness of the alleged incapacitated person and her ability to govern herself or manage her affairs. R. 4:86-2(b).

A judge must determine by clear and convincing evidence that the individual satisfies the statutory definition of an incapacitated person. In re Guardianship of Macak, 377 N.J. Super. 167, 175-76 (App. Div. 2005). "Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity." R. 4:86-6(a); N.J.S.A. 3B:12-24. If no jury trial has been requested, "the court, with the consent of counsel for the alleged incapacitated person, may . . . dispense with oral testimony and rely on the affidavits submitted." R. 4:86-6(a). With or without the consent to waive testimony, "the court must still independently consider all of the evidence, including the doctors' reports and the report of the court appointed attorney, and must make findings by clear and convincing evidence as to whether the person is incapacitated." Macak, supra, 377 N.J. Super.at 175-76. A person who challenges another person's capacity to care for herself or her affairs carries the burden of proof. In re M.R., 135 N.J. 155, 169 (1994).

The rules governing guardianship matters are established to protect the alleged incapacitated persons from wrongly being declared incapacitated and having their rights taken away. In their parens patriae role, courts are the guardians of personal rights and they have a special responsibility to protect the rights of the alleged incapacitated. In re M.R., supra, 135 N.J. at 166;In re Conroy, 98 N.J. 321, 345 (1985).

So severe is the consequence of taking away constitutionally protected individual rights that courts must not permit that to occur unless there is a showing by clear and convincing evidence that the alleged incapacitated person needs to be stripped of those rights for his or her own safety and protection, and that there is no less restrictive alternative. In re M.R., supra, 135 N.J.at 166, In re Conroy, supra, 98 N.J. at 321, Macak, supra, 377 N.J. Super. 167.

Here, the trial court, acting in its parens patriae role, acted to protect Keeter from the unnecessary and unjustifiable taking of her individual rights. The court properly found plaintiff failed to establish a prima facie case of incapacity by clear and convincing evidence. Considering the three doctors' reports, the court was not satisfied the statutory requirements for incapacity had been met.

The court found that Dr. Tomaino, Keeter's treating physician, had filed a report in which she merely filled in the blanks with no narrative or reasons for determining Keeter was incapacitated and in need of a guardianship. Dr. Tomaino also stated Keeter was not capable of attending a hearing when in fact, Keeter was present in court on the return date of the order to show cause.

Dr. Salisbury's report was inconclusive, stating that Keeter suffered from early dementia, was not oriented to time and place and needed help managing her medications. Dr. Pass filed a report concluding that Keeter had the capacity to make her own decisions with regard to her finances, health and estate.

We are satisfied that there is sufficient credible evidence in the record for the trial court's finding that plaintiff failed to meet her burden of establishing by clear and convincing evidence that Keeter satisfied the statutory definition of incapacitated person. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); N.J.S.A. 3B:1-2. Thus, the court met its independent obligation under the parens patriae doctrine of protecting Keeter from wrongly being declared an incapacitated person.

II.

Plaintiff argues that the court erred as a matter of law by waiving the hearing requirement without the court appointed counsel's consent. We disagree.

The guardianship provisions in Title 3B "evoke the State's parens patriae authority[.]" In re Queiro, 374 N.J. Super. 299, 308 (App. Div. 2005). This authority is derived "from the inherent equitable authority of the sovereign to protect those persons within the state who cannot protect themselves because of an innate legal disability." In re Grady, 85 N.J. 235, 259 (1981). Such authority has been invoked "to allow decisions to be made for an incompetent that serve the incompetent's best interests, even if the person's wishes cannot be clearly established." In re Conroy, supra, 98 N.J. at 365.

In Macak, this court reversed the finding of incapacity where the alleged incapacitated person entered into a "settlement" declaring him incapacitated because "by definition" an incapacitated person is unfit to manage his or her affairs, R. 4:86-2(b)(6), and "[u]nder no circumstances should . . . be coerced into agreeing to a guardianship[,]" Macak, supra, 377 N.J. Super. at 176.

The statutory scheme underscores the importance of protecting the alleged incapacitated person's interest, by providing for the appointment of counsel. Id. at 175-176; R. 4:86-4. We have noted that "[i]t is the duty of the court-appointed attorney to advocate . . . the client's position with respect to the underlying issue of whether the client is incapacitated." Macak, supra, 377N.J. Super. at 176. While the attorney need not advocate for decisions that are "patently absurd or . . . pose an undue risk of harm to the client[,]" In re M.R., supra, 135 N.J. at 176, counsel must "serve as an independent legal advocate for the alleged incapacitated person." Macak, supra, 377 N.J. Super. at 176 n.3.

Here, the court followed the applicable statutes and rules to the letter. Hot, the court-appointed attorney filed a report pursuant to Rule 4:86-4(b) and In re M.R., advocating for her client and simultaneously expressing her reservations about Keeter's abilities. Thus, Hot adequately performed her duties "not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes." In re M.R., supra, 135 at 176. There was no negotiated "settlement" of incapacity. Quite the contrary, Keeter hired private counsel and her own expert to oppose the application.

Contrary to plaintiff's contention, we are satisfied the trial court acted within its authority by resolving the question of Keeter's capacity without an evidentiary hearing. Pursuant to Rule 4:86-6(a), "[u]nless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity." If no demand for a jury trial is made, "the court, with the consent of counsel for the alleged incapacitated person, may . . . dispense with oral testimony and rely on the affidavits submitted." Ibid. While Rule4:86-4(b) provides for the appointment of counsel, it also provides for the situation in which the alleged incapacitated person obtains private counsel, as Keeter did here.

Plaintiff's position that the court was required to obtain consent from both court-appointed counsel and private counsel before proceeding without oral testimony, is incorrect. Rule 4:86-6(a) does not require the consent of the court-appointed counsel for an alleged incapacitated person where, as in this case, the alleged incapacitated person has retained private counsel, who consents to having the court resolve the matter based on the affidavits submitted without oral testimony. The court-appointed counsel's refusal to waive testimony was not premised on reservations about Keeter's competency, but rather on her duty to advocate for Keeter's position that she was not incapacitated and because the matter was contested.

Court-appointed counsel was also present at the hearing and did not object when private counsel spoke on Keeter's behalf and stated that his client preferred to avoid a trial among her children in front of the court on the issue of her capacity. Private counsel also indicated that Keeter was willing to go forward with the voluntary conservatorship to seek a geriatric care manager or visiting nurse to assist with her medication. The court-appointed counsel conceded the imposition of a conservatorship was an acceptable arrangement.

III.

Next, plaintiff contends that the court erred by failing to consider the establishment of a limited guardianship. Again, we disagree. The consideration of the type of guardianship to be imposed is taken only after a determination that the person is incapacitated. N.J.S.A. 3B:12-24.1(a) ("[i]f the court finds that an individual is incapacitated . . . the court may appoint a general guardian . . . ")(emphasis added); N.J.S.A. 3B:12-24.1(b)("[i]f the court finds that an individual is incapacitated . . . the court may appoint a limited guardian . . . ")(emphasis added).

After considering the three doctors' reports and hearing from both court-appointed and private counsel, the court found plaintiff had failed to establish by clear and convincing evidence that Keeter was incapacitated. The court had no obligation to impose a limited guardianship where incapacity has not been established. Moreover, as the court found that Keeter was not incapacitated, it was well within her capacity to agree to a voluntary conservatorship. In Macak, supra, 377 N.J. Super. at 175 n.2 ("Where the person is not incapacitated, but he has sufficient mental or physical impairment that he requires assistance in managing his finances, he may ask the court to appoint a conservator.") (citing In re Conservatorship of Halley, 342 N.J. Super. 457, 461-63 (App. Div. 2001)).

In our view, there was no legal error in the court's framing of the issue by setting out the applicable standard after considering all of the evidence, including the doctors' reports and the report of the court-appointed attorney. The court stated it had to decide "by clear and convincing evidence" that Keeter could not fundamentally perform the duties required to manage her affairs and herself.

Dr. Pass concluded that Keeter did not need a guardian. Dr. Salisbury opined that Keeter would "probably" benefit from a guardian, but also stated that she could benefit from a conservatorship, given the progressive nature of her disease. Thus, Dr. Tomaino was the only physician who recommended guardianship, while Keeter, Dalton and Hot all agreed with the resulting conservatorship chosen by the court.

In reviewing the findings of the trial judge sitting without a jury, this court does "not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). These findings are "binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484.

Affirmed.

ESTATE OF BLANCHE T. RIORDAN A-4123-09T4 June 17, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4123-09T4

IN THE MATTER OF THE ESTATE OF BLANCHE T. RIORDAN, DECEASED.

Argued March 29, 2011 - Decided June 17, 2011

Before Judges Parrillo, Skillman, and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-125-07.

James M. Nardelli argued the cause for appellants (A-4123-09)/respondents (A-4464-09) Ronald Sawczyn, Elaine Zahner, and Elizabeth Schweighardt (Parsons & Nardelli, attorneys; Mr. Nardelli, on the briefs).

Frank Holahan argued the cause for respondents (A-4123-09)/appellants (A-4464-09) Estate of Blanche T. Riordan and Executrix, Cheryl Davis (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Holahan, of counsel and on the briefs).

PER CURIAM

In these consolidated appeals, plaintiffs, Ronald Sawczyn, Elaine Zahner and Elizabeth Schweighardt, challenge a final decision of the Chancery Division, Probate Part, concluding that decedent, Blanche Riordan, had testamentary capacity when she executed her will and that the will was not the product of undue influence. Plaintiffs appeal the trial court's failure to award the full amount of their counsel fees. Defendants, Estate of Blanche T. Riordan and executrix, Cheryl L. Davis, appeal the award of any counsel fees to plaintiffs as an abuse of discretion. We affirm.

Blanche died testate on June 17, 2006 at the age of ninety-one. Blanche had no children. She was predeceased by her husband, Bill, and six of her seven siblings. She was survived by her younger brother, Anthony Chevins, and his three children, Cheryl Davis, Cynthia Chevins, and Christopher Chevins. Also surviving her were the two children of her late sister, Alberta Sawczyn: Ronald Sawczyn and Elaine Zahner. Anthony Chevins and Cynthia Chevins passed away during the pendency of these proceedings.

Blanche's will, executed on August 22, 2002, bequeathed $25,000 to her nephew, Ronald Sawczyn, and divided the remainder of her estate among her brother Anthony's three children, Cheryl, Cynthia and Christopher. The will was a document handwritten by decedent, and admitted to probate by the Monmouth County Surrogate on January 30, 2007. At that time, testamentary letters were issued to decedent's niece, Cheryl, authorizing her to administer the estate. Cheryl is a beneficiary under the will and an attorney in the State of New York. Cheryl regularly visited Blanche throughout the 1990s and started becoming very involved in Blanche’s affairs in 1997, after she began doing Blanche’s taxes, and eventually secured a power of attorney on July 30, 2002.

On May 3, 2007, plaintiffs, Ronald Sawczyn, Elaine Zahner and Elizabeth Schweighardt¹ filed a complaint seeking to set aside Blanche's will on grounds of lack of testamentary capacity and undue influence. The matter was tried over the course of several months between October 2008 and April 2009.

According to Ronald, Blanche’s nephew, in January 1999 Blanche mailed him two pieces of paper. The first was a handwritten, undated document that set forth her testamentary intentions. In that document, Blanche appointed her brother, Anthony, as executor of her estate. She appointed Anthony's three children, Cheryl, Cynthia, and Christopher Chevins, as having power of attorney after her death. Blanche directed $150,000 to be bequeathed to Ronald, $30,000 each to Elaine Zahner and Elizabeth Schweighardt, $1,000 to an individual named Helen Nolan, and the remainder of her estate in equal shares to Anthony’s three children.

The second piece of paper, mailed by Blanche to Ronald around the same time, was a handwritten note in which she indicated that she intended to include him in her will.

I’m going to make a will for you. You were mentioned in my will to make [sure] you get something from me. Haven’t as much as I thought and everyone is trying to take you away. I love you Ronnie. Aunt Blanche.

At trial, it was established that Blanche was living independently in her house in Little Silver prior to July 2002. Janine Talbot, her good friend and long-time neighbor, described Blanche as "smart," "funny" and "extremely independent."

On July 11, 2002, Blanche fell and fractured a vertebra. Ann Coulson, Blanche’s long-time friend and former neighbor, testified that she stopped by Blanche’s home four days later and Blanche asked her for a ride to Riverview Medical Center.

The hospital admission records note that Blanche made eye contact, with "appropriate" affect and speech. Blanche's motor behavior was "cooperative" and she explained to the admitting staff that she fell because she "lost [her] balance."

Blanche was hospitalized at Riverview from July 15 to July 18, 2002. Cheryl is identified in the hospital records as Blanche’s primary caretaker. While Riverview’s records reveal some awareness and cognitive dysfunction, notations also indicate that Blanche was oriented and, despite her injury, she was ambulatory.

On July 18, 2002, Blanche was transferred from Riverview to Avante, a sub-acute rehabilitation facility in Red Bank. The Riverview transfer form indicates that Blanche was medicated, largely with pain killers, for her fractured spine.

Avante’s records indicate that, upon admission, Blanche exhibited problems with her short-term and long-term memory, expressed symptoms of sadness, depression or anxiety, and was prone to wandering. Avante’s records also reveal that Blanche was "cooperative most of the times" and "easily redirected" but was still often confused as to place and began exhibiting symptoms of paranoia.

Coulson visited Blanche during her stay at Avante. Coulson testified Blanche "looked awful" and that "[s]he had on clothes that didn’t match and she was talking to the different people there and she wasn’t making any sense." She also testified that Avante was an "awful" facility that "smelled," with "[p]eople sitting in the halls crying . . . [Blanche] wanted to leave. She wanted to go home. I don’t blame her."

Talbot and her daughter also visited Blanche at Avante. Talbot described Avante as "an absolute hell hole, there’s no other word for it" and that she "wouldn’t bring [her] dog there [much less] a family member." Talbot recalled that Blanche was "upset" and that "she just wanted to get out."

Blanche remained at Avante for eight days. Blanche’s family was involved in her discharge from Avante. A social worker noted that she spoke with Cheryl on July 22, 2002, and that they "discussed the team’s assessment, that Blanche has cognitive and safety issues and unstable mood." Cheryl agreed and related that she had already looked into twenty-four hour nursing care with a plan for Blanche to go to assisted living. The next day, Cheryl informed the social worker that the family’s plan had changed. Mary Ann Sawczyn, Ronald’s wife, would be flying in from Arizona and care for Blanche with plans to eventually bring Blanche back with her to an assisted living facility in Arizona. The social worker also met with Elaine Zahner, Blanche’s niece and Ronald’s sister, who confirmed the above discharge plan.

On July 26, 2002, Blanche was discharged into Mary Ann’s care. Blanche’s discharge diagnosis was a fractured vertebra and dementia.

Mary Ann took Blanche to her home in Little Silver. Mary Ann testified that Blanche was "agitated" and "very jittery" and that she "babbled," "repeated things" and "rambled a lot." Mary Ann stayed with Blanche at her home from July 26, 2002 to August 2, 2002.

On July 30, 2002, Cheryl visited Blanche to secure a power of attorney, which Talbot witnessed. According to Mary Ann, Cheryl went across the street to get Talbot and then instructed Mary Ann to remain outside while they executed the power of attorney. Talbot confirmed that she witnessed Cheryl's and Blanche's signatures that day. Talbot thought Blanche was "fine" at the time the power of attorney was signed, and that Blanche was

sort of relieved to know that there would be somebody to take care of her, you know, should this sort of thing happen again. I think Blanche was a little concerned about her affairs. That shook her up a little bit, but I think, in general, she was getting older and, you know, she and I had talked about this kind of thing.

Cheryl testified that the first thing Blanche told her was to "get [Mary Ann] out of here" and that Mary Ann had infuriated her by telling "everyone that they interacted with that Blanche was crazy, and not to pay any attention to her."

Mary Ann testified that Blanche later complained that Cheryl was trying to take her money. According to Mary Ann, Blanche also complained about Talbot and Talbot’s children.

At some point during Mary Ann’s visit, Coulson visited Blanche at her home. Blanche instructed Mary Ann to go to the other room because she wanted to speak with Coulson. Blanche told Coulson that "[s]he didn’t like [Mary Ann]. She didn’t want her there." Once Mary Ann left the room, Blanche gave Coulson "little pieces of paper with [telephone] numbers written on it," which she had been hiding from Mary Ann. Blanche did not tell Coulson what to do with those papers and Coulson was upset when she left, knowing that Blanche "obviously was distraught, she wanted somebody to know that something was going on."

Elizabeth Schweighardt testified she also visited Blanche when Mary Ann was there in July 2002. Elizabeth observed Blanche had lost weight and appeared very agitated, nervous and pacing the floor.

Mary Ann's husband, Ronald, arrived on August 3, 2002, staying with Blanche for one week. Ronald stated he found Blanche to be physically frail, easily agitated, and full of complaints about her au pairs and family members. She was "[n]ot angry, just . . . like I said, a little disoriented as far as, you know, what was going on."

Ronald and Mary Ann returned to Arizona on August 11, 2002. Neither of them saw Blanche again before she ultimately passed away in June 2006. According to Cheryl, Blanche did not accompany them to Arizona because she adamantly refused to go.

Talbot testified she spent significant time with Blanche throughout the summer of 2002. Talbot stated Blanche "definitely knew" who she was, as well as Talbot's daughter. Talbot described Blanche during the summer of 2002 following her stay at Avante as "shook up," "in pain" and "almost like she was shocked by what had happened to her." Talbot stated "Blanche never wanted to leave her house."

During this time, Talbot claims to have had a conversation with Blanche about Blanche’s testamentary intentions. Talbot stated that Blanche "felt comfortable" with Cheryl being the person she wanted to have in charge of her affairs and that "she really didn’t care for Mary Ann." Blanche wondered whether her brother, Anthony, should be in charge of her affairs instead of Cheryl, because she "absolutely adored him," "really looked up to him as her brother and knew that he would take care of her," but also realized that "[Anthony] was getting on in years, as well, and he had things to take care of." In terms of the specifics of her will, Talbot testified that Blanche was "very vague," but said that

she wanted to make sure she took care of . . . Cheryl, Cindy and Chris . . . and she did mention Ryan [Ron?] to me. But not in great lengths or anything. She didn’t discuss anything about what was in her will . . . never asked her. . . . we didn’t talk about it.

On August 22, 2002, Anthony, Cheryl and Cynthia visited Blanche at her Little Silver home. According to Cheryl, the purpose was to determine whether Blanche was capable of living on her own or whether she required a nursing home. Cheryl stated that the other purpose for the visit was because Blanche "wanted to know what she should do with her money," meaning her investment portfolio. Cheryl testified that following Blanche’s return home from Avante, they had discussed her investments over the phone and Cheryl had recommended that Blanche consult her financial advisor at her bank.

Cheryl testified Anthony took Blanche into the dining room during this visit, where they remained for approximately forty-five minutes while Cheryl and her sister, Cynthia, stayed in the living room. When Anthony came out, he stated Blanche had written a will. Cheryl stated Anthony asked her, "Did I want to read it?" She said, "No." Cheryl maintains she had no idea a will was going to be prepared on that date.

The will is handwritten on a pre-printed legal form and appoints Cheryl as executrix of her estate. The substantive provisions, written in Blanche’s hand, provide:

I Blanche Riordan be [sic] of sound body to hereby leave the major part of my estate split evenly between Cheryl Davis, Christopher Chevins and Cynthia Chevins – my nieces and nephews. Also would like to leave to nephew Sawczyn the around [sic] of 25 thousand/25000.00.

Next, Blanche, Anthony, Cheryl and Cynthia drove in Cynthia’s car to Sovereign Bank in Red Bank, where Blanche did her banking to have her will witnessed. According to Cheryl, Blanche was not confused and knew what she was doing.

She was very happy that we were all there to help her attend to her affairs. I think she felt that she had family support, and she was very happy to hear that we weren’t putting her in a nursing home, and . . . other than that, she was just Blanche, as usual.

Cheryl and Cynthia witnessed the will and Loretta Pepa, a bank representative, notarized it. Pepa, who had known Blanche for a couple of years, testified that she remembered Blanche’s will because it was handwritten. Pepa stated that she asked Blanche if the instrument was her will and Blanche replied it was, that she had written it out, and asked Pepa to notarize her signature. Pepa confirmed that Cheryl, Cynthia and a gentleman were also present. When asked if there was any "doubt in her mind that [Blanche] knew the [document] was her will," Pepa replied there was not. Similarly, Pepa stated that there was nothing in Blanche’s demeanor, appearance or speech that led Pepa to be concerned that Blanche might not know what she was doing. Cynthia testified she never saw the will until more than six months after Blanche’s death.

That winter, 2002-2003, Blanche went by herself to Florida, to stay in her condo in Clearwater for roughly six weeks. Talbot testified that she had no concerns about Blanche traveling to Florida or being able to care for herself that winter.

Cheryl, who spoke to Blanche once a week while in Florida, stated that Blanche did not have any caretakers there and that she did her own grocery shopping and errands. Following her return from Florida, Cheryl stated that Blanche appeared "more frail because of her back injury," but that she was still involved in her own affairs, asking Cheryl about bills and house repairs. Copies of checks in the record reveal that Blanche wrote many of her own checks from August 2002 through the end of December 2002.

Blanche again returned to Florida for one month in the winter of 2003-2004. According to Talbot, Blanche was "pretty good" in the fall of 2003 but her health began to decline markedly upon her return from Florida. Cheryl confirmed she began to notice deterioration in Blanche’s mental health in late 2003.

Coulson, through her videotaped deposition, testified that she first noticed a decline in Blanche’s health in early 2003. She also testified that there was never an occasion when Blanche failed to recognize her or her voice, or failed to call her by name.

Blanche’s condition further deteriorated in 2004. In July 2004, Cheryl and Anthony procured two letter opinions from physicians, who stated that Blanche had Alzheimer’s Disease and was not competent to care for herself. Blanche was moved to a nursing home in spring of 2005 where she died in June 2006.

At trial, plaintiffs’ expert witness, Robert L. Berkowitz, M.D., who was qualified in psychiatry, testified as to Blanche’s mental condition and testamentary capacity when she executed her will on August 22, 2002. Dr. Berkowitz based his opinion on his review of the Riverview and Avante records, as well as Blanche’s will. He opined that Blanche suffered from dementia at the time of her fall in July 2002 and that her condition "was fairly advanced to the point where it did not appear [she] would be able to manage living alone independently in a safe and healthy manner." He concluded that Blanche was in a somewhat weakened state when she executed her will and may have been subject to undue influence, but was unable to offer an opinion that she was incapable of making a will.

The court set forth its decision on the record on September 29 and 30, 2009 and entered an order for judgment consistent with those rulings on September 30, 2009.

On October 30, 2009, plaintiffs filed a motion for counsel fees pursuant to R. 4:42-9(a)(3). On April 7, 2010 the court set forth, on the record, its decision to award counsel fees to plaintiff's counsel, though not the full amount, after it made appropriate calculations. On April 30, 2010, the court awarded plaintiffs $55,000 in counsel fees. These appeals followed.

I.

Plaintiffs argue the trial court’s finding that Blanche possessed the requisite testamentary capacity to execute a will on August 22, 2002 was not supported by sufficient, credible evidence and rather, "was so far wide of the mark and contrary to competent evidence in the record as to amount to a manifest denial of justice." We disagree.

"The findings of the trial court on the issues of testamentary capacity and undue influence, though not controlling, are entitled to great weight since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432(1993) (quoting Gellert v. Livingston, 5 N.J. 65,78 (1950)). A trial court's findings of fact and credibility "should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence as to offend the interests of justice." Id. at 524. As the reviewing court, we "should exercise . . . original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

As a general principle, New Jersey law requires only "a very low degree of mental capacity" to execute a will. Liebl,supra, 260 N.J. Super. at 524.

[T]he gauge of testamentary capacity has been stated to be whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of these factors to the others, and the distribution that is made by the will.

[Gellert, supra, 5 N.J. at 73.]

Testamentary capacity is tested at the time of execution of the will. Id. at 76.

In any attack upon the validity of a will, there is a legal presumption that the testator was of sound mind and competent when he executed the will. Haynes v. First Nat’l Bank of N.J., 87 N.J. 163, 175-76 (1981); In re Will of Davis, 14 N.J. 166, 169 (1953). This presumption can only be overcome by clear and convincing evidence. In re Estate of Coffin, 103 N.J. Super. 1, 3, (App. Div. 1968). The burden of establishing lack of testamentary capacity falls upon the party who contests the will being offered for probate. Ibid.

Here, the trial court found that Blanche suffered from "a dementia condition of undefined specific proportions in the summer of 2002." Despite this condition, the court concluded Blanche possessed the requisite testamentary capacity when she executed her will on August 22, 2002. The court observed that, while the Riverview and Avante records indicate that Blanche sometimes suffered from symptoms of dementia, they also reveal that Blanche was often lucid and clear in her thoughts and behavior. There are regular notations that Blanche was oriented, her affect appropriate and that, despite her injury, she was ambulatory. The court noted that Blanche was admitted to Riverview for a fractured vertebra, not symptoms of dementia, and there are few actual references in the medical records to "some sort of dementia that would cause one to think she was substantially impacted by the condition that she undoubtedly [would be] dealing with as she gets older."

The court placed great weight on Dr. Berkowitz's inability to opine as to the key issue of whether Blanche was mentally capable of making a will on August 22, 2002. While Dr. Berkowitz testified that it was "very likely" that the dementia he believed Blanche suffered from would prevent her from being able to make a will, he "couldn’t say for sure." Dr. Berkowitz’s inability to offer a conclusive opinion on incapacity was dispositive when the court stated: "[a]nd that essentially, in my mind, resolves the capacity issue."

In concluding that Blanche possessed testamentary capacity, the court specifically credited the testimony of Talbot and Coulson, who described Avante as a "hell hole" and Blanche as extremely upset and traumatized from her experience there. The court reasoned that Blanche’s unusual behavior at Avante could be attributed to pain medications or to her reaction to being confined at Avante. The testimony of Talbot and Coulson supported the conclusion that Blanche was fiercely independent, that she wished to remain living alone in her home and that her mental state improved after her discharge from Avante. The court also noted Blanche was living on her own when she executed her will and for more than a year thereafter, going to Florida by herself the next two winters.

Evaluating the evidence in the aggregate, the court concluded that plaintiffs did not satisfy their heavy burden of proving, by clear and convincing evidence, that Blanche lacked testamentary capacity when she executed her will on August 22, 2002.

We are satisfied there is sufficient competent and reasonably credible evidence in the record to support the trial court's finding that Blanche possessed the requisite testamentary capacity to execute a will on August 22, 2002. Liebl, supra, 260 N.J. Super. at 529.

II.

Plaintiffs contend that the trial court's factual findings and legal conclusions with respect to the issue of undue influence on Blanche by Cheryl or Anthony are unsupported by the credible evidence adduced at trial and warrant reversal.

What constitutes undue influence sufficient to invalidate a will is a question of law. But whether a will was procured by undue influence is a question of fact for the court, as is the truth or credibility of evidence introduced on such issue and the weight to be given thereto.

[In re Skewis’ Will, 2 N.J. Super. 114, 118 (App. Div. 1949).]

A will which on its face appears to be validly executed, can be overturned if it is tainted by "undue influence." Haynes,supra, 87 N.J. at 176. Undue influence has been defined as:

a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a will or inter vivos transfer in lieu thereof.

[In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008).]

"It denotes conduct that causes the testator to accept the 'domination and influence of another' rather than follow his or her own wishes." Id. at 303 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).

Two elements are required to raise a presumption of undue influence. First, there must be a "confidential relationship" between the testator and the beneficiary. Stockdale, supra, 196 N.J. at 303l; see Haynes, supra, 87 N.J. at 176. Second, the presence of "additional 'suspicious' circumstances" in combination with such a confidential relationship must exist. Stockdale,supra, 196 N.J. at 303; see Haynes, supra, 87 N.J. at 176. Such circumstances "need only be slight." Stockdale, supra, 196 N.J.at 303 (citing In re Rittenhouse's Will, 19 N.J. 376, 379 (1955)).

Under normal circumstances, once a presumption of undue influence has been established and the burden of proof is shifted to the proponent of the will, the presumption may be overcome by a preponderance of the evidence. Haynes, supra, 87N.J. at 177-78; In re Catelli’s Will, 361 N.J. Super. 478, 487 (App. Div. 2003). If, however, "the presumption arises from 'a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary as well as the attorney,' the presumption must instead be rebutted by clear and convincing evidence." Stockdale,supra, 196 N.J. at 303 (quoting Haynes, supra, 87 N.J. at 183).

Plaintiffs argue the court mistakenly found that defendants had overcome the presumption of undue influence because the court held defendants to a lower standard of proof -- "preponderance of the evidence" -- instead of the "clear and convincing" burden that should have governed. We disagree. The trial court determined that as a result of Cheryl having Blanche's power of attorney, there was a confidential relationship and Cheryl was in a position to exert undue influence. Though Cheryl was an attorney in New York, she did not act as Blanche's attorney in the preparation of Blanche's handwritten will executed in her Little Silver home. Thus, the enhanced burden did not apply to defendants. Notwithstanding the confidential relationship, the court found no evidence that Cheryl, in any way, overpowered the will of Blanche. The court noted the testimony of several witnesses that "Cheryl was more uninvolved than involved" with Blanche on a daily basis. Blanche was not dependent on Cheryl nor did Cheryl live with Blanche, allowing Cheryl to control Blanche's day-to-day existence. Next, the court found there were "very slight" suspicious circumstances causing the burden to shift to the defendants. The court stated:

[a]nd the slight circumstances I would find would be that the will was drawn in the presence of Cheryl Davis, although not directly, she was in the other room, but her father was in the room with his sister, Mrs. Riordan. It was drawn at a time when she was not in good health.

The court concluded the defendants had met their burden to overcome the presumption of undue influence by a preponderance of the credible evidence. These proofs included the testimony of the notary, Pepa, and Talbot, the handwritten nature of the will, lack of a prior will, the fact no changes were made to the will in the two years between its execution and Blanche's incapacity, and that Blanche "even mentioned one of the parties challenging the will." We are satisfied the record supports the trial court's finding that there was no proof, "other than innuendo and insinuation," of any purported undue influence by Cheryl.

We recognize the court did not expound its findings addressing the possibility that undue influence was exerted upon Blanche by her brother, Anthony, for the benefit of his children. Nonetheless, the lack of any such undue influence was implicit in the court's overall determination and in any event, was supported by sufficient credible evidence in the record. To be sure the court recognized Anthony's presence in the room when the will was drawn and that Anthony came to Blanche's home with his three children who were named as beneficiaries. Notwithstanding Blanche's admiration for her brother, the testimony of Talbot demonstrates Blanche had declined to put Anthony in charge of her affairs because Blanche recognized Anthony was getting up in years and was busy with his own life. According to Talbot, Blanche was comfortable with Cheryl as the holder of her power of attorney and looked to Cheryl for advice on her finances and investments. There was no evidence that Blanche sought financial advice from Anthony nor was he involved with Blanche on a day-to-day basis allowing him to exert control. The court stated: "There is no attorney involved here. And certainly that is a fact which is worth noting. It wasn't as if the testator's brother and his children took her to New York and had this accomplished out of her home, but it occurred in her home." After a careful review of the record, we are satisfied that even if the burden shifts, as plaintiffs contend, there is sufficient credible evidence in the record that the burden was carried and any influence exerted by Anthony was not undue.

III.

The defendants, as proponents of the will, argue the court abused its discretion in that plaintiffs were not entitled to any fee award at all. The plaintiffs, as contestants of the will, appeal their $55,000 attorney fee award, asserting it was insufficient under Rule 4:42-9(a)(3). We reject both challenges.

The decision to award attorneys' fees falls within the discretion of the trial judge and, accordingly, is reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). If the trial judge makes a discretionary decision, but acts under a misconception of the applicable law, we need not afford the usual deference. The court instead must adjudicate the controversy in the light of the applicable law in order to avoid a manifest denial of justice. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960).

New Jersey has a strong public policy against the shifting of costs. In re Niles Trust, 176 N.J. 282, 293 (2003). Our court has embraced this policy by adopting the "American Rule," which requires that every litigant bear his or her own attorney's fees and costs. Despite this general policy, exceptions to the American Rule have been carved out for specific situations. See In re Estate of Vayda, 184 N.J 115, 120-23 (2005). Among these exceptions is that embodied in R. 4:42-9(a)(3), which provides that a court may allow counsel fees to be paid from the estate in a will contest:

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except . . .

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

[R. 4:42-9(a)(3) (emphasis added).]

In such instances, an affidavit of services is required. R. 4:42-9(b).

To satisfy the "reasonable cause" requirement under Rule 4:42-9(a)(3), those petitioning for an award of counsel fees must provide the court with "a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process." In re Will of Caruso, 18 N.J. 26, 35 (1955). "That being said, '[e]xcept in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute.'" In re Will & Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).

The defendants objected to the fundamental notion of awarding fees, alleging the plaintiffs had made no showing of undue influence and, therefore, had no reasonable basis to challenge the will. The defendants also noted the strong public policy against fee shifting.

We perceive no abuse of discretion in the trial court's award of counsel fees. The record supports both the award and the basis upon which it is founded. The court distinguished between the legal standard governing whether a challenge to a will should be upheld and the more liberal standard governing a counsel fee award in probate cases of a "reasonable basis" for bringing the action. The court found there was a reasonable basis given the testator's behavior prior to her execution of the will and Cheryl having power of attorney and being in a position of influence, though not sufficient to set aside the will. The court determined the challenge was reasonable.

Although the court could have provided a more detailed explanation as to how it arrived at the award of $55,000, the court noted a number of factors which it considered, reasoning the fee should be substantially reduced to achieve an equitable balance given the facts and outcome. In analyzing the issue, the court considered the size of the estate (approximately $900,000), the time expended in prosecuting the action of almost three years with the trial being conducted over five days and the fact that the will contest was unsuccessful. It also considered the fact that the plaintiffs' counsel assumed the risk and knew the potential for the case being lost, where no contingency fee would be paid. We discern no clear abuse of discretion in the trial court awarding a partial award of fees to plaintiffs' counsel.

Affirmed.

1 Elizabeth Schweighardt, originally named co-plaintiff, is decedent's niece by marriage. She was informally dismissed from these proceedings as she was not a legal heir. Despite the dismissal, Elizabeth Schweighardt continued to be named as an appellant herein.