No undue influence in signing of Will IN THE MATTER OF THE ESTATE OF KEVIN TIMOTHY DEKIS, DECEASED

No undue influence in signing of Will

IN THE MATTER OF THE ESTATE OF KEVIN TIMOTHY DEKIS, DECEASED. ____________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1080-10T2

Argued: September 14, 2011 - Decided: October 3, 2011

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. 2007-1423.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM Decedent's adult daughter, Ryah Dekis, appeals from the

Chancery Division's September 22, 2010 amended final judgment granting summary judgment to defendant, Nancy Clayton, the executrix of the estate, dismissing with prejudice appellant's complaint asserting a post-death will challenge and denying her motion to remove Clayton as executrix and a beneficiary under decedent's will. We affirm.

Clayton was the longtime companion of decedent, Kevin Dekis, for half his life, about twenty-five years, cohabiting with him for twenty of those years and they remained an exclusive couple until his death in 2007. They purchased two homes together as joint tenants with rights of survivorship, one in l987 and one in l998. Additionally, decedent named Clayton as beneficiary of his Thrift Savings Plan1 and his life insurance policy through his employer in 1992, as well as his Prudential Life Insurance Policy in 2002.

In May 2003, decedent underwent surgery due to an apparent blockage in his large intestine, during which the bulk of his small intestine became gangrenous and had to be removed, an error that would become the basis for a malpractice action decedent filed sometime prior to May 2005. Lab tests disclosed the intestinal blockage was due to cancer, which was removed, and decedent was successfully treated by chemotherapy from September 2003 to January 2004. Although his cancer went into remission, decedent suffered from several infections, which apparently caused kidney damage. Decedent was placed on the small intestine transplant list in the late summer or early fall 2006, and on the transplant list for a new kidney in December

1 The date of the beneficiary designation is not reflected in the record.

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2006. He began dialysis two to three times weekly from September 2006 until his death in June 2007.

Clayton certified that, despite decedent's illness, he "led an active lifestyle, visiting friends, relatives and living as normal a life as possible[,]" and "[a]lthough he was physically ill at times" and "did not at times feel well," he "maintain[ed] a self-sufficient lifestyle during the last year of his life[]" and "personally handled his medical appointments, personal errands, visited friends, administered his daily intravenous line [], and maintained his own personal hygiene and medical needs, all by himself." Clayton further certified that decedent "continued to care for himself until the very end of his life." Appellant did not dispute these statements other than to challenge the characterization of decedent's life as "normal" and "self-sufficient." Appellant also admitted that decedent "knew the extent of his assets, particularly his personal injury lawsuit, at the time he signed the 2006 Will."

In interrogatory answers, depositions, and certifications, Clayton detailed the circumstances leading to the preparation and execution of decedent's will. She explained they had numerous discussions over the years about the need to draft wills, recognizing, in part, that their assets, not jointly held, would not be protected as they were not married.

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Nonetheless, typically, they procrastinated in doing so. In 2006, Clayton began discussions with decedent, as well as with her elderly parents, about the need to make wills. Her sister- in-law arranged for an attorney to prepare wills for Clayton's parents, and Clayton attended the interview between her parents and the attorney and the subsequent will signings.

Clayton admitted her fear that it would be "an utter nightmare" if decedent died intestate because they were not married and thus she would not be entitled automatically to non- jointly-held assets and those for which she was not the designated beneficiary. She anticipated problems in dividing their commingled assets and property they amassed over their longstanding relationship and was concerned that decedent's wishes would not be carried out if he died intestate. During transplant evaluations in the summer 2006, she and decedent discussed the necessity of decedent having both an Advanced Directive ("Living Will") and will.

It was undisputed decedent was interested in "cars and music" and had no interest in "computers, cell phones or other new technology," and Clayton was "totally content to let [him] maintain their cars and houses" while he "left the technology issues and household issues" to her. Thus, considering Clayton had handled most of the "personal administration" and "financial

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dealings" historically throughout their relationship, and having observed how "relatively simple" the will process was that her parents had gone through with the attorney, Clayton decided she would have to take the initiative. In August 2006, decedent gave her a template for a Living Will he was given while at the Hospital at the University of Pennsylvania; however, Clayton noticed it was for Pennsylvania. She then located a New Jersey form online, which she printed for decedent. He designated Clayton as his health care representative and his mother and sister-in-law as the alternate health care representatives, and executed the Living Will on October 13, 2006.

As Clayton explained in detail, she subsequently located and downloaded an internet template for a fill-in-the-blank will in New Jersey and cut and pasted into it from another site nine generic enumerated powers of the executor. On the evening of December 20, 2006, at their home, Clayton asked decedent questions so she could enter the information into the template, such as who he wanted to be the executor (Clayton) and alternate executor (decedent's brother). When Clayton asked decedent what he wanted to leave his family, he initially replied, "Nothing [because] they have everything they need[,]" he had savings bonds for appellant, and Clayton should "get everything." Clayton then read to decedent the following statement from the

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website contained in the "Ten Steps to Completing Your Last Will and Testament":

If you leave nothing for them, a judge could determine at a later date that you forgot to do so, should one of them challenge your Will. It is best to make your intentions clear and demonstrate that you did not forget anyone.

Consequently, decedent agreed it made sense to provide for each of his immediate family members and informed Clayton of each specific bequest of personalty, which she typed into the document. When appellant's name came up on the list, decedent reiterated that "he had savings bonds in her name, and reminded [Clayton] that she had never paid him back the money he lent her for her first car." Thus, decedent's specific bequest to appellant was the "Savings Bonds listed in her name."2 Decedent designated Clayton as the sole residuary beneficiary. Other than the specific bequests, Clayton and decedent did not discuss any of decedent's assets at that time, including the pending malpractice claim.

Decedent appropriately executed the self-proving will at a local bank on December 28, 2006, in the presence of two independent witnesses and a notary. Decedent passed away on

2

Though decedent designated his "children per share" as the contingent residual beneficiary, it is undisputed appellant, his only child, would be such recipient.

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June 16, 2007. The majority of his residuary probate estate consists of about $700,000, which is the proceeds of the malpractice settlement that was negotiated around December 2007 or January 2008.

On November 2, 2007, appellant filed suit, seeking to invalidate decedent's will based on claims of undue influence and lack of testamentary capacity. In February 2010, Clayton moved for summary judgment and appellant sought to remove Clayton as executrix and strike the residuary devise to her.

By order of April 27, 2010, Judge Hogan granted summary judgment in favor of Clayton, dismissing appellant's complaint with prejudice, accompanied by a detailed written opinion. Viewing the facts in the light most favorable to appellant, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the judge found "no evidence of either a confidential relationship or suspicious circumstances which would lead to the conclusion that [] Clayton unduly influenced [decedent]." He explained:

Undue influence is a mental, moral, or physical persuasion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his own mind as it relates to the disposition of assets, generally by means of a will. [Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (l981)].

....

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Ordinarily, the burden of proving undue influence falls on the will contestant, however, if the will benefits one who stood in a confidential relationship to the testator and if there are additional "suspicious" circumstances, the burden shifts to the party who stood in that

relationship Rittenhouse's Will, 19 N.J. 376, (l955) [additional citations omitted].

In re 378-79

to the testator.

Although the judge found Clayton and decedent shared a "confidential relationship" in the broad sense insofar as they cohabited for more than twenty years in a marital-type relationship, he was not satisfied their relationship rose to a level of dependency or subservience under the case law so as to constitute the first prong of undue influence. See Pascale v. Pascale, 113 N.J. 20, 34 (1988) (recognizing that a confidential relationship encompasses situations 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") (internal quotation marks omitted); see also Haynes, supra, 87 N.J. at 176 (holding that a confidential relationship between a testator and beneficiary arises "where trust is reposed by reason of the testator's weakness or dependence or where the

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parties occupied relations in which reliance is naturally inspired or in fact exists"). Judge Hogan rejected appellant's contention that Clayton's knowledge of computers and customary handling of their financial matters demonstrated her dominance over decedent in the preparation of his will, instead recognizing decedent's contributions to the relationship and concluding she and decedent had a "simple division of labor seen in many households."

The judge also found the record clearly demonstrated Clayton was the natural object of decedent's bounty and the residuary bequest under the will was consistent with decedent's disposition of the majority of his non-probate assets to Clayton, his life-partner. The judge further took into consideration the certification of decedent's parents and three brothers that discussed Clayton's and decedent's longstanding loving relationship and opined, among other things, that decedent was of "sound mind" when he made his will, Clayton did not influence any decision made by decedent regarding his will, decedent was never under anyone's "control" as he "did what he wanted, even to his last day[,]" and they believed there was no cause for his will to be challenged.

Judge Hogan also rejected appellant's argument that Clayton's conduct constituted the unauthorized practice of law.

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He found inapposite In re Estate of Margow, 77 N.J. 316, 328 (1978), in which an executrix was removed from her position based on a finding she engaged in the illegal practice of law by offering legal counsel to the testatrix as to her estate needs and actively participating in the drafting of her will.

The court entered an amended final judgment on September 22, 2010, incorporating a counsel fee award to appellant pursuant to Rule 4:42-9(a)(3) and including, in pertinent part, a provision granting Clayton's motion for summary judgment dismissing the complaint with prejudice and denying appellant's motion to remove Clayton as executrix and strike the residuary testamentary gift to her. This appeal ensued.

On appeal, appellant challenges the court's rejection of a confidential relationship between Clayton and decedent and the presence of suspicious circumstances surrounding the execution of the will. She also challenges the court's finding that Clayton did not engage in the unauthorized practice of law, emphasizing Clayton's selection of two will forms from the internet and merging them into a single document, her interviewing decedent as an attorney would have done, and giving decedent legal advice about the need to give gifts to his immediate family members. Consequently, appellant contends Margow is controlling and bars Clayton from serving as executrix

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and from reaping the benefit of the residuary bequest, regardless of lack of proof of harm or other inappropriate conduct.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

Appellant does not contend that summary judgment was prematurely granted but, rather, that the court misapplied the principles of law regarding undue influence to the factual

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circumstances of this case and erred as a matter of law in distinguishing Margow. We are satisfied Judge Hogan's findings with respect to Clayton's lack of undue influence over decedent in the preparation and execution of his will are consistent with the applicable law, amply supported by the record, and explained in detail in his written opinion. Accordingly, we discern no basis for further discussion on that issue and affirm substantially for the reasons articulated by the court. R. 2:11-3(e)(l)(A) & (E).

Based on our independent review of the record and our analysis of the applicable law, we are also satisfied that, based on the totality of the circumstances, Clayton's conduct did not rise to the level of the unauthorized practice of law. Accordingly, we affirm the court's denial of appellant's motion to remove her as executrix and residuary beneficiary.

In Margow, supra, the testatrix had an ongoing eleven-year business relationship with Muriel Kabot, the legal secretary of her and her husband's estate attorney. 77 N.J. at 319-20. Upon Kabot's retirement and at the request of testatrix, who was "78 years of age and in declining health," they embarked on a friendship. Id. at 320. During one of Kabot's visits to the testatrix's apartment, the testatrix expressed concern that an attorney (not Kabot's boss) who prepared her previous will had

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named himself executor without consulting her. Ibid. Kabot told the testatrix she could legally prepare her own will. Ibid. The Court explained the factual record as follows:

[Kabot], with 27 years of experience as a legal secretary, much of which with a firm engaged in an estate practice, was apparently perceived by [testatrix] to be as competent as the attorneys with whom she had dealt in the past. Whether this perception was attributable to [testatrix's] declining mental capabilities or a calculated attempt by [Kabot] to play upon the fears of this lonely, vulnerable woman is unclear from the record.

[Ibid.] Kabot assisted the testatrix in the preparation of a new

will, supplying her with a copy of her own will to be used as a form for the will dictated by the testatrix, clarifying some of the legal phrases as the testatrix dictated, making "automatic changes" where she deemed appropriate, and even drafting some of the provisions entirely of a subsequent will executed by the testatrix. Id. at 321, 325. The primary beneficiary, who was fearful of Kabot's intervention in the internal operations of the testatrix's family business in her fiduciary capacity, sought to bar her as executrix on the grounds she exerted undue influence over the testatrix and had engaged in the unauthorized practice of law by drafting the will. Id. at 321-22.

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The applicable statutes pertaining to the unauthorized practice of law in effect at the time were N.J.S.A. 2A:170-78 and N.J.S.A. 2A:170-80. N.J.S.A. 2A:170-78 provided in pertinent part as follows:

Any person not licensed as an attorney or counselor at law, and any corporation that:

Is a

a. Engages in this state in the practice of law; or

b. Holds himself or itself out to the public, either alone or together with, by or through any other person, whether such other person is so licensed or not, as engaging in or entitled to engage in the practice of law, or as rendering legal service or advice, or as furnishing attorneys or counsel in legal actions or proceedings of any nature;

.... disorderly person.

N.J.S.A. 2A:170-80 provided that "the term '

practice of law' as used in this article includes (without limitation thereto) the engaging in the practice of preparation of wills or

conveyances." The Court was not convinced Kabot's role was limited to

that of a scrivener, finding instead she also functioned in a legal capacity because she became involved in two activities traditionally restricted to licensed attorneys —– legal

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counseling and the drafting of a will. Margow, supra, 77 N.J. at 324. As to Kabot's legal counseling, the Court noted she admitted she answered several of the testatrix's inquiries concerning the legal nuances of amending and drafting a will. Ibid. Kabot then gave the testatrix a legal form, "clarified" some of the legal phrases for her, made "automatic changes" where she deemed appropriate, and drafted some of the provisions entirely. Id. at 325. The Court found as a compelling factor of Kabot's active engagement in the drafting of the will that "the provisions of the will [were] so couched in 'legalese' that it [was] inconceivable that testatrix, an elderly woman with no prior experience in the law, whose health was failing rapidly, could have drafted such a document." Ibid. Accordingly, the Court concluded that for the two-year period that Kabot was counseling the testatrix through the drafting of her wills, she was acting as the "functional equivalent" of the testatrix's legal counsel. Ibid. Accordingly, Kabot's actions constituted the unauthorized practice of law under the aforementioned statutes. Ibid. Considering the public policy "concern as to the potential harm which may befall the unsuspecting victim of unqualified legal advice" and the totality of the circumstances of the case, the Court would not permit Kabot to benefit

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financially by her unlawful conduct by remaining as executrix. Id. at 325-28.

In l994, the statutes upon which Margow was based were repealed and were replaced with N.J.S.A. 2C:21-22, which provided, in pertinent part:

Even if we were to assume that the substantive reasoning of Margow is still good law even though the "practice of preparation of wills" is no longer expressly defined as constituting the practice of law, we are satisfied Margow is factually distinguishable from the present case and Clayton did not act as the functional equivalent of decedent's legal counsel in the preparation of his will. Clayton may have had

a. A person is guilty of a disorderly

persons offense if the person knowingly

engages in the unauthorized practice of law.

b. A person is guilty of a crime of the

fourth degree if the person knowingly

engages in the unauthorized practice of law

and:

(1) Creates or reinforces a false

impression that the person is licensed to

engage in the practice of law; or

(2) Derives a benefit; or

(3) In fact causes injury to another.

c. For the purposes of this section, the

phrase "in fact" indicates strict liability.

[L. l994, c. 47, § 1.]

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technological experience, which would make it easier for her to "surf the internet" and locate will forms and will kits that are online and available to the general public. However, she was not a legal secretary or someone with similar training and experience. There was no evidence presented that Clayton was perceived by decedent to be as competent as attorneys he had dealt with in the past or that he was relying on her legal expertise. In contrast with Margow, decedent was not an "unsuspecting victim."

For the most part, Clayton downloaded a form applicable for New Jersey, read it to decedent, he filled in the blanks and she typed in the information. Clayton did not answer any questions from decedent regarding legal nuances or give him legal advice. All she did regarding the specific bequests was to read him verbatim the advice contained on the website, available to the general public, that a testator should make his intentions clear in a will and demonstrate he did not forget anyone. Clayton did not clarify legal phrases, make any changes to decedent's language, or draft any provisions herself. The mere fact that Clayton "cut and pasted" onto the will form a more descriptive list of the executor's powers from another will form on the internet, also available to the public, does not raise her conduct to the level of the unauthorized practice of law. We

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also note that, unlike Margow's will couched in "legalese," decedent's will was written in plain English and easily understood by a layperson. Decedent then took the will to the bank, where it was properly witnessed by independent persons and notarized in accordance with law.

Affirmed.

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