In NJ
typically there is only 4 months to file a Superior Court complaint to object
to a Will which is already filed with the Surrogate
See Rule 4:85-1. Complaint; Time for Filing
If a will has been probated by the Surrogate's
Court or letters testamentary or of administration, guardianship or trusteeship
have been issued, any person aggrieved by that action may, upon the filing of a
complaint setting forth the basis for the relief sought, obtain an order
requiring the personal representative, guardian or trustee to show cause why
the probate should not be set aside or modified or the grant of letters of
appointment vacated, provided, however, the complaint is filed within four
months after probate or of the grant of letters of appointment, as the case may
be, or if the aggrieved person resided outside this State at the time of the
grant of probate or grant of letters, within six months thereafter. If relief,
however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon
the court) the complaint shall be filed within a reasonable time under the
circumstances. The complaint and order to show cause shall be served as
provided by R. 4:67-3. Other persons in interest may, on their own motion,
apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not
exceeding 30 days by order of the court upon a showing of good cause and the
absence of prejudice.
Commons grounds
object to Will is undue influence.
Undue Influence to challenge a Will or Power of
Attorney
A grievance based upon undue
influence may be sustained by showing that the beneficiary had a confidential
relationship with the party who established the account. Accordingly, if the
challenger can prove by a preponderance of the evidence that the survivor had a
confidential relationship with the donor who established the account, there is
a presumption of undue influence, which the surviving donee must rebut by clear
and convincing evidence.
Although
perhaps difficult to define, the concept "encompasses all relationships
'whether legal, natural or conventional in their origin, in which confidence is
naturally inspired, or, in fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20,
34 (1988) (internal citation omitted). "And while family ties alone may
not qualify, parent-child relationships have been found to be among the most
typical of confidential relationships." DeFrank, supra,
slip op. at 13 (citing Ostlund, supra, 391N.J.
Super. at 401).
In the context of inter vivos gifts, "a presumption
of undue influence arises when the contestant proves that the donee dominated
the will of the donor or when a confidential relationship exists between the
donor and done." Pascale, supra, 113 N.J. at
30 (internal citations omitted). "Where parties enjoy a relationship in
which confidence is naturally inspired or reasonably exists, the person who has
gained an advantage due to that confidence has the burden of proving that no
undue influence was used to gain that advantage," In re Estate of
Penna,322 N.J. Super.
417, 423 (App. Div. 1999), and "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.'" In re Estate of
Mosery, 349 N.J. Super.
515, 522-23 (App. Div. 2002) (citing In re Dodge, 50 N.J. 192,
227 (1967)).
The person receiving gifts and greater benefit had a
burden to show no deception was practiced and that all of the transactions were
fair, open and voluntary, and that they were well understood.
One of the major cases dealing with
undue influence was Haynes v. First National State Bank of New Jersey,
87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof
establishing undue influence shifts to the proponent when a will benefits a
person who stood in a confidential relationship to the decedent and there are
suspicious circumstances, which need explanation. The suspicious circumstances
need only be slight. Id. at 176. Moreover, when the evidence is almost
entirely in the possession of one party and the evidence points to the
proponent as asserting undue influence, a clear and convincing standard may be applied
rather than the normal burden of proof of preponderance of the evidence. Id.
at 183.
Furthermore, the Haynes analysis
was extended to situations in which there is a transfer of property where the
beneficiary of the property and an attorney is on one side and the donor on the
other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).
The court in Oachs determined
that under circumstances such as these the donee bears the burden of proof to
establish the validity of the gift, even in situations in which the donee did
not dominate the decedent’s will. Id. at 485. This rule was established
to protect a donor from making a decision induced by a confidential
relationship the donee possesses with the donor. Id. Again, the burden
is a clear and convincing standard. Id.
The Supreme Court in Pascale v.
Pascale, 113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a
donee that he/she is dependent upon, a presumption arises that the donor did
not understand the consequences of his/her act. In these situations the donee
must demonstrate that the donor had disinterested and competent counsel. Id.
Likewise, undue influence is conclusive, when a mentally or physically
weakened donor makes a gift without advice or a means of support, to a donee
upon whom he/she depends. Id.
A confidential relationship can be
found to exist when one is certain that the parties dealt on unequal terms. In
re Stroming’s Will, 12 N.J. Super. 217, 224 (1951). The appropriate inquiry
is if a confidential relationship existed, did the parties deal on terms and
conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948).
Suspicious circumstances are not
required to create a presumption of undue influence with regard to inter vivos
gifts and the presumption of undue influence is more easily raised in an inter
vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v.
Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987).
Generally, an adult is presumed to be
competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J.
Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N.J. 20, 29
(1988). However, when a party alleges undue influence with regard to an inter
vivos gift, the contesting party must prove undue influence existed or that a
presumption of undue influence should arise. Pascale, supra, 113
N.J. at 30.
A presumption of undue influence arises
when a confidential relationship exists between the donor and donee or where the contestant proves the
donee dominated the Will of the donor. Id.; see also Seylaz v.
Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227
(1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v.
Stanton, 280 N.J. Super. 478 (App. Div. 1995) (holding that where a
confidential relationship existed and that the donor did not rely upon the
donee, a shifting of the burden was still appropriate); In re Neuman’s
Estate, 133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will
context “Such burden does not shift merely because of the existence of a confidential
relationship, without more, as in the matter of gifts inter vivos.”)
The In re Dodge court explained
why a presumption of undue influence arises in a confidential relationship and
stated: “In the application of this rule it is not necessary that the donee
occupy such a dominant position toward the donor as to create an inference that
the donor was unable to assert his will in opposition to that of the donee.” In
Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in
explaining the rule’s application:
"Its purpose is not so much to
afford protection to the donor against the consequences of undue influence
exercised over him by the donee, as it is to afford him protection against the
consequences voluntary action on his part induced by the existence of the
relationship between them, the effect of which upon his own interests he may
only partially understand or appreciate." In re Dodge, supra,
50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A.
1904).
In sum, once it is proven that a
confidential relationship exists the burden shifts to the donee to show by
clear and convincing evidence that no undue influence was used. Although the
case law indicates suspicious circumstances need not be shown the donee must
show all was fair, open and voluntary, no deception was practiced and that the
transaction was well understood. Pascale, supra, 113 N.J. at 31;
see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra,
5 N.J. at 173. Furthermore, confidential relationships arise in all types of
relationships “whether legal, natural or conventional in their origin, in which
confidence is naturally inspired, or, in fact, reasonably exists.” In re Fulper’s Estate, 99 N.J. Eq.
292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34.
It appears confidential relationships exist in all cases in which:
"The relations between the
[contracting] 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." Pascale,
supra, 113 N.J. at 34, quoting In re Fulper, supra, 99
N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.
In determining whether the Defendant
was the dominant person in the relationship there is no clear-cut rule and
instead the court must look to the particular circumstances of the matter. In
re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18
N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper the court determined
that a confidential relationship existed in a father-son relationship in which
the father was advanced in age, weak and physically depended upon the son.
Moreover, since the father sought the son’s assistance on business matters,
lived with the son during the winter months and gave the son joint and several
power over his checking account an actual repose of trust and confidence in the
son was demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.
In the Giacobbi case, supra,
a confidential relationship was determined to exist between a mother and
daughter, even though the mother did not suffer from mental or physical
infirmity. There the mother was found to be alert, active, and somewhat
independent. However, she turned to the daughter for small issues and problems
when they occurred. Giacobbi, supra, 18 N.J. Super. at 617.
Therefore, the burden can shift to
Defendant to prove by clear and convincing evidence the transaction was not
unduly influenced. Furthermore, where a donor makes an “improvident” gift to
the donee upon whom she depends that strips the donor of all or virtually all
their assets, as here, a presumption arises that the donor did not understand
the consequences of their act. Pascale, supra, 113 N.J. at 31,
citing Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). Under those
circumstances the donee must establish that the donor had the advice of
competent and disinterested counsel. Id. citing Vanderback, supra,
1 N.J .at 488-89.
Similarly, when a mentally or
physically weakened donor makes a gift to a donee whom the donor is dependent
upon, without advice, and the gift leaves the donee without adequate means of
support, a conclusive presumption of undue influence arises. Id. citing Seylaz,
supra, 5 N.J. at 173. However, when a donor is not dependent upon the
donee “independent advice is not a prerequisite to the validity of an
improvident gift even though the relationship between the parties is one of
trust and confidence.” Id. citing Seylaz, supra, 5 N.J. at
173.
Although suspicious circumstances are
not required to be established in an inter vivos transfer for a presumption of
undue influence to exist, thereby shifting the burden of proof, Plaintiff has
raised the issue. Pascale, supra, 113 N.J. at 30.
If Undue Influence was 'Clear,' the Will of the Elderly
Testatrix is Denied Admission to Probate.
The testatrix's Will was properly rejected as the product of
undue influence because the proponent and the testatrix had a confidential
relationship and because there were "suspicious circumstances"
surrounding the execution of the will.
In Re Probate of the Last Will and Testament of Catelli 361 NJ Super. 478 (App.
Div. 2003)
In the
Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone
Catelli, as the executor in a will and as the trustee under a living trust,
which she executed on January 9, 1996. He appeals from the decision of the
Chancery Division which refused to admit that 1996 will to probate, which named
his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate,
which ordered him to restore assets to the estate, which awarded counsel fees
and which dismissed a related complaint that he had filed in his effort to
enforce certain provisions of the 1996 trust.
The decision
of the trial court was made following two days of testimony and the
consideration by the court of deposition testimony given by witnesses,
including Thomas Villone, who could not appear in New Jersey. In that decision,
the court first held that, as a matter of public policy, the will could not be
admitted to probate because at the time of the execution of the 1996 will, Anna
Catelli had become blind and the only person who could verify that the contents
of the documents had been read to her so that she knew what she was signing was
Thomas, who the disputed documents made her sole heir. As an alternate ground,
the judge analyzed the testimony and the evidence in the nature of an
application for a directed verdict at the close of the plaintiff's case and
determined that Thomas Villone could not prevail on the merits. Because we
affirm the decision of the court based upon the alternate ground, we do not
address the court's public policy rationale.
Viewed in the
light most favorable to Thomas Villone, the record discloses the following
facts. The testator, Anna Catelli, was a widow who had no children and who
lived alone. She had a number of nieces and nephews, including Thomas Villone
and George Villone. She also had a brother, Robert, who died in Florida in
1994. Robert had named Thomas, his nephew, as the executor and principal
beneficiary of his estate. Thomas, who was a self- employed long distance truck
driver living in Arizona, had not had much contact with Anna Catelli, but
telephoned to tell her of her brother's death. In that conversation, Catelli
had asked him to come and visit her when he was next in New Jersey and he
thereafter did so.
Early in
1994, while Thomas was visiting her at her home, then in Springfield, Catelli
asked him to drive her to her lawyer's office in Maplewood, which he did. He
learned that day that Catelli had named him as her alternate power of attorney
in the event that her long-time physician and confidante, Dr. Coppola, was
unable to serve. While he was not aware of it at the time, she had gone to the
lawyer's office that day to execute a will that left her estate to a variety of
relatives and friends and to two churches and which included him as one of the
residuary beneficiaries. Later that year, Catelli suffered a significant stroke
which left her partially paralyzed and with limited powers of speech and sight.
She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden
Terrace Nursing Home where she remained until her death. Thomas visited her at
the nursing home from time to time when he was in New Jersey. Shortly before
Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli
wanted to make him her sole heir. Dr. Coppola died two or three days later.
Following
Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts
to himself, his wife and his daughter. He next received from Dr. Coppola's son
all of the papers relating to Catelli's assets. While Thomas then knew that the
designation of him as the sole heir was a departure from her earlier will, he
did not discuss this apparent change of plans with Catelli. Rather, he
immediately consulted an attorney in Arizona who prepared a living trust, which
named Thomas as the trustee, and a pour-over will which named Thomas as the
executor and sole heir. The Arizona attorney gave the documents to Thomas along
with a letter which instructed him to have the documents reviewed by a New
Jersey attorney and which suggested that Anna be represented by independent
counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While
Thomas knew that Catelli had been represented in the past by the lawyer in
Maplewood, he did not contact him and did not consult with any other New Jersey
lawyer. Instead, he went directly to the nursing home and visited with Catelli.
Over the course of the next three days, while she remained in her bed
and dozed on and off, he read the documents to her. Thomas has a high school
education and concedes that he would not have been able to explain or interpret
any of the language of the trust or the will to Catelli. He was aware that the
trust and the will together would enable him to avoid probate, but he did not
understand why that might be advantageous. At no time did he suggest that
Catelli consult with an attorney or offer to contact her New Jersey lawyer for
her.
After
three days, Thomas made arrangements with the administrator of the nursing home
to execute the trust and the will. The administrator served as a notary and two
nurses observed Catelli place an "X" on the line Thomas indicated.
Shortly after the execution, Thomas gave up his truck driving job, employed
himself as the full-time manager of Catelli's assets and undertook to gain
control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family
real estate venture, through the trust instrument. Prior to Catelli's death,
Thomas' efforts to gain control of her interest in Excelsior consisted of
correspondence with his cousin George Villone who was the General Partner of
that venture. George Villone refused to acknowledge the validity of the January
9, 1996 trust agreement and refused to turn control of Catelli's interest in
Excelsior over to Thomas. He continued to refuse after Catelli's death on July
5, 1997. As a result, in March 1999, Thomas instituted litigation, in his
capacity as the executor of Catelli's estate and as her heir, against George
Villone and Excelsior to force a transfer of Catelli's interest to him. That
complaint was consolidated with the action filed subsequently by Thomas in the
Chancery Division, Probate Part seeking to have the disputed will admitted to
probate.
The judge
elected to first receive evidence relating to whether the 1996 will should be
admitted to probate. At the close of the evidence offered in favor of the
admission of the will, the trial court held, first, that Thomas Villone had
failed to demonstrate that Catelli knew the contents of the documents that she
had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563
(E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct.
1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge
rejected the will. While each of these decisions includes a discussion of the
effect of visual impairment on the knowing execution of a will, each of them
arose in the context of a dispute based on allegations of undue influence.
Thus, while each of these precedents rejected a proffered will executed
by a testator with a significant visual or other impairment, none requires
proof of knowing execution beyond that specified by the statute. N.J.S.A.
3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will
had been executed in accordance with the statutory formalities, public policy
demands proof beyond compliance with the formalities of execution if the
testator can no longer see. He held that the will was invalid because there was
no evidence from anyone other than the sole beneficiary that the will had been
read to Catelli and that she knew what she was signing. He therefore created an
additional requirement for probate of a will executed by a visually impaired
person, citing public policy. We appreciate the trial judge's concern that a
testatrix with a severe visual impairment is ordinarily unable, without the intervention
of a neutral person, to determine if the will as drafted accurately
memorializes her testamentary instructions. The same, of course, is true of a
testator who cannot read by reason of illiteracy. But whether the statutory
provisions for the witnessing and execution of the wills of such testators
should be augmented to require that the pre-execution reading of the will to
the testator be by a disinterested person is, in our view, a matter within the
province of the Legislature.
The court
held We are satisfied, at least in this case, that we need not further consider
that issue because, as the judge found, this record speaks so clearly of undue
influence. The trial judge addressed the alternate ground of undue influence
using the standard of a directed verdict at the close of plaintiff's proofs. R.
4:37-2(b). He found that there was a confidential relationship between the
decedent and the beneficiary, that there were suspicious circumstances
surrounding the execution, that undue influence was therefore presumed, that
the burden to overcome the presumption therefore shifted to Thomas and that the
record before the court made it impossible for him to carry that burden. He
therefore refused to admit the will to probate, dismissed the complaint against
George Villone and Excelsior, admitted Catelli's 1994 will to probate,
appointed George Villone as the Administrator C.T.A., directed Thomas to
restore assets to the estate and approved fees and commissions. We agree with
the judge's alternate analysis of the probate dispute and we affirm on that
ground.
Viewed in
terms of undue influence, there can be no doubt about the issues before us. The
judge identified several factors that supported his analysis of undue
influence, including the fact that Thomas retained his own attorney to prepare
the documents, that he did so based only on the conversation with Dr. Coppola
and without any consultation with Catelli herself, that the documents were
markedly different from Catelli's prior will, that Catelli was very debilitated
and vulnerable, that the effect of the documents was an immediate vesting of
control of all assets in Thomas through the inter vivos trust document, and
that Thomas immediately upon the death of Dr. Coppola left his employment and
by means of the power of attorney began to pay himself a commission and
dispensed substantial gifts to himself and his immediate family, which bespoke
self-dealing even prior to the time of the execution of the disputed documents.
The court
held: We concur with the judge's analysis of the effect of these facts. First,
Catelli was clearly not well. The nursing administrator who saw her daily
conceded that, while she had made progress in recovering from her stroke, her
level of functioning was seriously diminished. Her short-term memory was
significantly impaired. Her vision had deteriorated substantially. She required
total care by the staff at the nursing home, needing daily assistance with
feeding, bathing, and other basic needs. During the three days prior to the
execution of the document, she did not leave her room, but remained in bed,
dozing from time to time and barely communicating with anyone. While she was
undoubtedly fond of Thomas, who was virtually her only visitor after the death
of Dr. Coppola, she was especially vulnerable to his influence.
Moreover, Thomas acted in a manner, which made his intentions clear.
Even accepting as true his testimony that he learned from Dr. Coppola that
Catelli intended to make him her sole heir, his behavior proves that he acted
so as to overbear her will. He made no effort to discuss Catelli's intentions
with her prior to acting for his unilateral benefit. He knew that Catelli had
an attorney in New Jersey who had prepared at least one earlier will, but he
deprived Catelli of the opportunity to consult with him. He did so in spite of
the urging of his personal attorney from Arizona to have the documents reviewed
by New Jersey counsel and to give Catelli the benefit of independent legal
advice. He knew as well that the 1994 will left significant assets to the two
churches and a hospital, left numerous specific bequests to friends and to a
few family members, and included him only as one of the residuary
beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all
were to be rejected in favor of him alone.
Nor
did he simply carry out the instruction that he be made her sole heir. Instead,
he used his own attorney to secure immediate control of her assets. He knew
that Catelli had not previously utilized a trust and he knew from his own
lawyer that a living trust with a pour-over will would give him control before
Catelli died. In fact as soon as he had the ability to exercise any control
through the power of attorney, he gave $30,000 in gifts to himself, his wife
and his daughter, an act well in excess of any prior expression of generosity
by Catelli and not one she authorized. Shortly thereafter, he embarked on a new
career, hiring himself to be the full time manager of her assets, in spite of
his lack of any relevant training or experience. Those acts are the behavior
not of one with Catelli's interests at heart, but of one bent on his own
enrichment at her expense.
The law
governing undue influence is well established. While we generally presume that
the testator is of sound mind and competent to execute a will, Gellert v.
Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have
been validly executed can be overturned upon a demonstration of undue
influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981).
Similarly, an inter vivos transfer, as was this trust, is equally governed by
the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale
v. Pascale, 113 N.J. 20, 29-31 (1988).
Undue
influence is "defined as 'mental, moral or physical' exertion which has
destroyed the 'free agency of a testator' by preventing the testator 'from
following the dictates of his own mind and will and accepting instead the
domination and influence of another.'" Haynes v. First Nat'l State Bank,
supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A.
1943)). Where the will benefits one who enjoyed a confidential relationship
with the testator, and where there are suspicious circumstances surrounding the
will, the law presumes undue influence and the burden is upon the proponent of
the will to disprove the presumption. In re Rittenhouse's Will, 19 N.J. 376,
378-79 (1955).
The court held: The confidential relationship
between Thomas and Catelli is both plain and conceded. See Haynes v. First
Nat'l State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280,
282 (1952). The suspicious circumstances surrounding the will need only be
"slight" to shift the burden of proof to the proponent to overcome
them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blake's Will,
21 N.J. 50, 55-56 (1956).
Once the burden has shifted, the will proponent must
overcome that presumption by a preponderance of the evidence. Haynes v. First
Nat'l State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J.
Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J.
Super. 1, 5 (App. Div. 1978), aff'd o.b., 78 N.J. 563 (1979). See also Pascale
v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears
burden of proof by clear and convincing evidence).
The court held The record before us
discloses no evidence by which Thomas could meet this burden. On the contrary,
the record is overwhelmingly supportive of the finding of undue influence. The
combination of the confidential relationship and the suspicious circumstances
was more than sufficient to shift the burden to Thomas. The absence of any
evidence tending to negate the presumption and the abundant evidence of
self-dealing by Thomas support the conclusion that the testator's will was
overborne. The trial judge, having heard and considered the evidence,
appropriately found that the burden that had shifted to Thomas was one that he
was unable to carry. Affirmed.
KENNETH
VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
