SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
IN THE MATTER OF THE ESTATE OF
VIVIAN FASSETT.
__________________________________
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Argued:
February 16, 2012 - Decided:
Before Judges Cuff and Waugh.
On appeal from the Superior Court of New Jersey,
Chancery Division-Probate Part, Ocean County, Docket No. 188933 (consolidated
with L-126-11 and C-2-11).
Thomas Bolling, appellant, argued the cause pro
se.
Cheryl Capers, respondent, argued the cause pro
se.
Marie Hardy, respondent, argued the cause pro se.
PER CURIAM
On
December 6, 2010, the Surrogate of Ocean County admitted to probate the last
will and testament of Vivian Fassett and issued letters testamentary to Cheryl
Capers and Marie Hardy as co-executrixes of the Fassett estate. Thomas Bolling, a brother of Fassett,
filed a complaint seeking several forms of relief, including an order setting
aside the will, an order barring disposition of Fassett's remains as directed
in her will, an accounting, and money damages. Bolling appeals from the March 1, 2011 order dismissing the
complaint, directing Capers and Hardy to proceed with their duties as executrixes,
authorizing Capers and Hardy to proceed with the disposition of decedent's
remains in accordance with her instructions, and ordering Capers and Hardy to
provide an accounting.[1]
On
appeal, Bolling argues that the trial court erred in upholding the will and
authorizing the executrixes to proceed with the funeral arrangements because
the will was fraudulent and decedent was under undue influence when she signed
the will. Due to our denial of
Bolling's application to stay disposition of decedent's remains, this appeal is
limited to his contentions that the October 30, 2010 will executed by Fassett
is the product of undue influence and she was not competent to execute the will
at that time. Capacity to make a
will and undue influence are separate concepts governed by different legal
principles and will be discussed in turn.
After a will has
"been admitted to probate, it may be challenged by the timely filing
of a complaint in the Probate Part."
In re Estate of Stockdale, 196 N.J. 275, 302 (2008)
(citing R. 4:85-1). In an
attack against the validity of a will, "[t]he legal presumption is that
the testator was of sound mind and competent when he executed the
will." In re Will of Livingston,
5 N.J. 65, 71 (1950).
Generally, "'the law requires only a very low degree of mental
capacity for one executing a will.'"
In re Will of Liebl, 260 N.J. Super. 519, 524 (App. Div.
1992), (quoting In re Will of Rasnick, 77 N.J. Super. 380, 394
(Cty. Ct. 1962)), certif. denied, 133 N.J. 432 (1993). The trial court must determine whether
the testator comprehended the property of which she would dispose, the
recipients of her property, the act of executing the will, and the relation
among these factors. Will of Livingston,
supra, 5 N.J. at 73.
A will may be contrary to the principles of
justice and humanity; its provisions may be shockingly unnatural and extremely
unfair, nevertheless if it appears to have been made by a person of sufficient
age to be competent to make a will and also to be the free and unconstrained
product of a sound mind, the courts are bound to uphold it.
[In re Estate of Hoover, 21 N.J. Super.
323, 325 (App. Div. 1952), certif. denied, 11 N.J. 211 (1953).]
Bolling,
as the party who challenges the capacity of his sister to make a will, has the
burden of proof to overcome the presumption that his sister had the capacity to
execute the October 30, 2010 will.
That she died within thirty days of executing the will is not
dispositive of her capacity on October 30. Bolling had the obligation to adduce competent evidence that
his sister did not comprehend the nature and scope of her assets, the identity
of the persons to receive these assets, the fact that she was executing a will,
and that the document would distribute those assets to the persons she had
identified. Competent evidence is
evidence that is trustworthy, reliable, and probative of the fact or facts at
issue and admissible in court in accordance with the Rules of Evidence. See Calabro v. Campbell Soup
Co., 244 N.J. Super. 149, 169 (App. Div. 1990) (Competent evidence
is evidence that is "'[l]egally qualified or adequate.'" (quoting Webster's
Ninth New Collegiate Dictionary at 268 (1983))), aff'd, 126 N.J.
278 (1991).
Measured
by this standard, Bolling did not carry his burden. He submitted to the Probate Judge various documents that
provided information about his sister's condition at various points in time. For example, a document dated August 26,
2010, reported that his sister "has lung ca[ncer] on heavy meds &
confused." The document,
however, was not authenticated and also recited her condition two months before
she executed the October 30, 2010 will. Significantly, the record before the Probate Judge contained
no properly authenticated documentation or other admissible evidence of her
testamentary capacity on October 30, 2010.
A will may be
overturned, however, if tainted by "undue influence." Haynes v. First Nat'l State Bank,
87 N.J. 163, 176 (1981).
Not all influence, however, amounts to undue influence. Will of Livingston, supra,
5 N.J. at 73.
"Persuasion or suggestions or the possession of influence and the
opportunity to exert it, will not suffice." Ibid.
Rather, the influence must amount to a "mental, moral or physical
exertion which has destroyed the free agency of a testator by preventing the
testator from following the dictates of [her] own mind and will and accepting
instead the domination and influence of another." Ibid. Generally, "[t]he burden of
proving undue influence is upon the person asserting it and it must be clearly
established." Id. at
71; see also Estate of Hoover, supra, 21 N.J. Super.
at 325 (undue influence "must be sustained by clear and convincing
evidence.").
"[O]nce 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, supra, 87 N.J.
at 177-78. Hence, "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 to the testator." Estate of Stockdale, supra,
196 N.J. at 303. The suspicious
circumstances may be slight. Ibid.
Here,
too, the information submitted by Bolling failed to carry the requisite burden
to establish undue influence by anyone, let alone require a shift of the burden
of proof to Capers and Hardy, the proponents of the will.
It
is also noteworthy that the judge did not consider Bolling's challenge on the
papers. Bolling, Capers and Hardy appeared
before him twice. At the first
hearing, another of decedent's brothers appeared by telephone. At the second hearing, Anetha Ginwright,
the mother of Fassett, attended the hearing. Judge Peterson had the opportunity to review the documents
submitted and the sworn testimony of Bolling, his brother, Capers, Hardy, and
Ginwright. The judge's findings on
the issues of testamentary capacity and undue influence are entitled to great
weight because he had the opportunity to see and hear the witnesses and form an
opinion about the credibility of their testimony. Will of Livingston, supra, 5 N.J. at 78.
We will not disturb these findings
unless they are manifestly unsupported by or inconsistent with the competent
evidence submitted at trial. Will
of Liebl, supra, 260 N.J. Super. at 524. Our review of the is record reveals no
basis to disturb the March 1, 2011 order.
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[1] Bolling
sought a stay pending appeal of that part of the March 1, 2011 order permitting
Capers and Hardy to proceed with the cremation of decedent. By order dated March 10, 2011, we denied
a stay.
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