No clear proof if undue influence SUPERIOR COURT OF NEW JERSEY
IN THE MATTER OF THE
ESTATE OF ALFRED
FINOCCHIARO, SR., Deceased
_______________________________
ESTATE OF ALFRED FINOCCHIARO, JR.
Deceased, CHAD FINOCCHIARO, KELSEY
FINOCCHIARO and NICHOLAS FINOCCHIARO,
Plaintiffs-Appellants,
v.
FRANK FINOCCHIARO,
Defendant-Respondent.
APPELLATE DIVISION
DOCKET NO. A-4532-14T1
________________________________
Telephonically Argued November 1, 2016 -
Decided November 30, 2017
ember 30, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Morris
County, Docket No. P-1257-2012.
Frank M. Williams argued the cause for
appellants.
Robert W. Mayer argued the cause for
respondent.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
This appeal concerns the validity of the last Will and
Testament of Alfred Finocchiaro, Sr., who died in Dobson, North
Carolina from cardiac arrest on August 18, 2011 at the age of
eighty-nine. On July 2, 2012, decedent's son Frank Finocchiaro1
successfully admitted his father's 2007 non-resident Will to
probate in the Office of the Surrogate of Morris County. On
October 16, 2012, Peggy M. O'Dowd, the estranged wife of decedent's
late son Alfred, Jr., and his children Chad, Kelsey and Nicholas,
filed a verified complaint in the Morris County Chancery Division,
Probate Part, seeking to nullify the 2007 Will and revoke the
letters testamentary issued to Frank.
The case was tried before Judge Stephan C. Hansbury over a
two-day period on April 27 and 28, 2015. Plaintiffs claimed three
grounds for invalidating decedent's 2007 Will: (1) lack of
testamentary capacity; (2) undue influence by his son Frank; and
(3) improper execution. Plaintiffs sought to invalidate the 2007
Will and reinstate a Will decedent executed in 2001 that contained,
inter alia, specific bequests to Chad, Kelsey and Nicholas, and
1
In the interest of clarity, we will refer to the individuals
whose last name is "Finocchiaro" by their first name. We intend
no disrespect.
2 A-4532-14T1
directed the residuary estate to be equally divided between his
two sons, Frank and Alfred, Jr., per stirpes in fee simple
absolute. Plaintiff also sought punitive damages and an award of
counsel fees.
In support of their claims, plaintiffs presented the
testimony of Dr. Robert Bock, a family practice physician who
briefly treated decedent in 2005. Judge Hansbury also granted
plaintiffs' application to admit Dr. Bock as an expert witness in
the field of "general family medicine, competency determination
and geriatric care." Plaintiff also called Detective James A.
Mandeville, who was one of the Pequannock Police Officers who
responded to decedent's residence on December 29, 2006, the day
Alfred, Jr. committed suicide. Detective Mandeville testified
about the circumstances surrounding Alfred, Jr.'s suicide. The
balance of plaintiffs' case consisted of testimony from O'Dowd and
from the children she had with Alfred Jr.
Defendant's case consisted of Frank's testimony and that of
John A. Snowdon, Sr., the attorney who prepared the March 1, 2007
Will. Frank described his father's emotional state and cognitive
abilities during the time he cared for him after Alfred, Jr.'s
death. Snowdon testified about his interactions with Frank and
decedent and the procedures he followed to ensure that decedent
had the testamentary capacity to execute the 2007 Will.
3 A-4532-14T1
After considering the evidence presented by the parties,
Judge Hansbury found plaintiffs did not prove, by clear and
convincing evidence, that Frank unduly influenced decedent to
disinherit Alfred Jr.'s children or that decedent lacked the
testamentary capacity to dispose of his estate at the time he
executed the March 1, 2007 Will. Judge Hansbury also found that
Snowdon's testimony describing the manner the Will was executed
satisfied the requirements of
N.J.S.A. 3B:3-23.2
Against this record, plaintiffs now appeal arguing that they
were "manifestly denied justice" because Judge Hansbury's factual
findings and application of the relevant legal standards were
clearly erroneous. We disagree and affirm substantially for the
reasons expressed by Judge Hansbury in his oral opinion delivered
from the bench on April 29, 2015. We gather the following facts
from the evidence presented by the parties before the Chancery
Division.
2 N.J.S.A. 3B:3-23 provides:
If an issue as to the execution of a will
arises in a contested probate action, the
testimony of at least one of the attesting
witnesses, if within the State, competent and
able to testify, is required. Other evidence
is admissible as to the due execution of a
will.
4 A-4532-14T1
I
At the time of his death on August 18, 2011, Alfred, Sr.
resided with his son Frank and his wife Jacqueline in Boonville,
North Carolina. Decedent's wife Florence and his older son Alfred
Jr., both predeceased him. As reflected in the certificate issued
by the Morris County Surrogate, decedent was survived by his son
Frank and four grandchildren, Chad, Kelsey, Nicholas and William
Ray Smith, Jr. On May 22, 2001, decedent executed a last Will and
Testament that designated Frank as executor and Alfred Jr. as the
substitute executor. This Will contained the following specific
bequests and provisions:
1) To my grandson, WILLIAM RAY SMITH, JR., I
leave the sum of $30,000.00
2) To my granddaughter, DARLEEN MCCLELLAN, I
leave the sum of $5,000.00.
3) To my grandson, NICHOLAS FINOCCHIARO, I
leave the sum of $5,000.00.
4) To my grandson, CHAD FINOCCHIARO, I leave
the sum of $5,000.00.
5) To my granddaughter, KELSEY FINOCCHIARO, I
leave the sum of $5,000.00.
6) To my great-granddaughter, HAILEY MARIE
SMITH, I leave the sum of $5,000.00 and
7) To my great-grand[son], WILLIAM RAY SMITH,
I leave the sum of $5,000.00.
8) To any unborn or afterborn grandchildren
or great-grandchildren not specifically
5 A-4532-14T1
name[d] above, I leave the sum of $5,000.00
for each.
9) To my two sons FRANK T. FINOCCHIARO and
ALFRED F. FINOCCHIARO, I leave the property
located on Highway 71, Scohata, Louisiana,
along with all the rights, leases, contracts
and appurtenances thereto.
The 2001 Will also divided the residuary estate equally between
Frank and Alfred, Jr., per stirpes in fee simple absolute.
On March 1, 2007, decedent executed a second Will that
expressly revoked "all prior Wills and Codicils made by me." The
2007 Will designated Frank as executor and William Ray Smith, Jr.,
as the substitute executor. The 2007 Will contained the following
specific bequests and provisions:
1) To my grandson, WILLIAM RAY SMITH, JR., I
leave the sum of THIRTY THOUSAND DOLLARS
($30,000.00).
2) To my granddaughter, DARLEEN MCCLELLAN, I
leave the sum of FIVE THOUSAND DOLLARS
($5,000.00).
3) To my grandson, NICHOLAS FINOCCHIARO, I
leave the sum of FIVE THOUSAND DOLLARS
($5,000.00).
4) To my grandson, CHAD FINOCCHIARO, I leave
the sum of FIVE THOUSAND DOLLARS ($5,000.00).
5) To my granddaughter, KELSEY FINOCCHIARO, I
leave the sum of FIVE THOUSAND DOLLARS
($5,000.00).
6) To my son FRANK T. FINOCCHIARO, I leave the
property located on Highway 71, Scohata,
6 A-4532-14T1
Louisiana, along with all rights, leases,
contracts and appurtenances thereto.
The 2007 Will bequeathed the residuary estate to Frank. In
the event Frank did not survive him, decedent left the residuary
of his estate to his daughter-in-law Jacqueline Finocchiaro,
Frank's wife. Thus, the 2007 Will removed two significant
provisions that were part of the 2001 Will: (1) the specific
bequests to Hailey Marie Smith and to decedent's unborn or after-
born grandchildren or great-grandchildren; and (2) the per stirpes
provision in the distribution of the residuary estate between
Frank and Alfred, Jr., thus denying Alfred, Jr.'s children the
right to equal shares of their late father's share of the residuary
estate.
Dr. Bock was the first witness to testify at the trial. He
began seeing decedent as a patient when he took over the practice
of decedent's former physician. Dr. Bock testified his first
contact with decedent was in September 2005. Although he did not
remember the visit, Dr. Bock was able to describe decedent's
physical and emotional status based on the medical notes he took
to document the encounter. Dr. Bock wrote that decedent was
"overall feeling well" and said "he could still rage hell." He
did not have "any chest pain" or "trouble breathing," or any signs
of "acute illness." Dr. Bock testified that decedent told him he
7 A-4532-14T1
was "eating okay" and "his moods were good."
Dr. Bock next saw decedent approximately one month later.
According to his notes, decedent was more "agitated" and "confused"
that day. Although "he didn't actually complain of anything,"
Dr. Bock asked his son Alfred Jr., to try to get him decedent's
medical records because he had been "diagnosed with bladder cancer
[six] years before." Dr. Bock wrote that decedent's "blood
pressure was real high, which . . . goes along to him being
agitated[.]" On that day, Dr. Bock found him "only alert and
oriented X1." This meant "he knew his name but didn't know where
he was."
On that day, Dr. Bock "made a note of his dementia" on
decedent's file. Dr. Bock testified that he left a message with
his son Alfred Jr., and ordered "a CAT scan of the abdomen and an
ultrasound of the neck." He saw decedent again on November 1,
2005. On this day, Dr. Bock testified that decedent "wasn't
delusional." Dr. Bock spoke to "his daughter-in-law"3 about
scheduling the "scans." Dr. Bock also noted that decedent had not
started to take his blood pressure medication and his "[b]lood
pressure was high, still."
Dr. Bock next saw decedent on December 29, 2005. He noted
3
We presume this reference to "daughter-in-law" applies to Peggy
O'Dowd.
8 A-4532-14T1
decedent's condition "was better." Although he was still smoking,
his blood pressure was better. Dr. Bock continued to see decedent
on this semi-monthly basis in 2006. His main medical concern was
decedent's elevated blood pressure aggravated by his continued
smoking. According to Dr. Bock, he visited decedent at his home
on a regular basis in 2006 and noted that his physical appearance
was deteriorating throughout the months. The last time he saw him
that year was in December 2006. Dr. Bock wrote decedent was:
"Walking about at home. Smoking. Pleasant. Conversive.
Appropriate. Greeted me at the door. No complaints. Mild cough.
Wants to stay home. Refusing nursing home placement." Despite
these indicia of normalcy and cognitive awareness, Dr. Bock
testified that decedent "was unaware of my name or what I did,
even though I was there for the last year."
Dr. Bock's relationship with decedent ended on January 26,
2007, when he encountered decedent's son Frank. Dr. Bock wrote
that Frank was "[v]ery agitated" and did not want him to continue
to treat his father. Ultimately, Dr. Bock opined that decedent
suffered from a chronic, progressive course of dementia from
October 27, 2005 until the last time he examined him in December
2006. In his opinion, decedent was not competent during this
entire time period. In response to plaintiffs' counsel's
questions, Dr. Bock provided the following opinion testimony with
9 A-4532-14T1
respect to the ultimate issue before the court.
Q. So, therefore, Doctor, in your opinion do
you believe that he could understand the terms
of a will?
A. That's something that we never discussed,
but I wouldn't expect so, no.
Q. Given his medical condition?
A. No.
Q. And do you believe that he would be able
to understand or to express a proposed
distribution plan route under a will? Or what
he'd like done after he died?
A. I don't think he'd even understand a
distribution plan, or necessarily what that
meant. What he would want to happen like if
he got - - if he wanted to be buried or
cremated? He might have an opinion on that.
But in terms of long—term estate planning and
things, you know, part of the - - I don't
think he would have the competency for that.
Pequannock Police Detective Mandeville testified that he and
other police officers responded to a report of a suicide at
decedent's home on December 29, 2006. Upon arrival, they found
that Alfred, Jr. had hanged himself in the garage. Mandeville
remembered speaking with Alfred Jr.'s wife Peggy O'Dowd, who did
not reside at the house. Relying on police records to refresh his
recollection, Mandeville testified that he believed Alfred, Jr.
and his father Alfred, Sr. were the only residents.
10 A-4532-14T1
Peggy O'Dowd testified that from October 2005 to December
2006, her husband Alfred, Jr. lived with his father. She and her
husband were separated and estranged from each other. During this
same period of time, she would go to the house where her husband
lived "on occasion." According to O'Dowd, she had "a very good
relationship" with her father-in-law "during the period of my
marriage." She and her estranged husband took care of whatever her
in-laws needed.
On cross-examination, O'Dowd confirmed that she had a pending
divorce action at the time Alfred, Jr. took his own life. When
asked if she had a tumultuous marriage, O'Dowd responded: "We had
. . . a marriage at sometimes made in hell, yes." She sought and
obtained a domestic violence restraining order against her
husband. O'Dowd testified that she was forced to get several
restraining orders against her husband over the years, mostly due
to his alcoholism. O'Dowd and Alfred, Jr. also had significant
financial problems and filed for bankruptcy protection.
O'Dowd described her father-in-law as a reclusive man who was
accustomed to a daily routine of going to work and returning home
without socializing. Even before his illness, decedent never
answered the telephone. He depended on his wife to take care of
the house work and the family's finances. O'Dowd also stated that
decedent did not "believe[] in doctors." She did not seek out
11 A-4532-14T1
decedent or have any communications with him at the time her
husband committed suicide. In fact, she did not see decedent
until Alfred, Jr.'s wake.
Alfred, Jr.'s daughter Kelsey was fifteen years old at the
time of her father's death in December 2006. She described her
relationship with decedent as "very close." Kelsey stated, "I
lived right down the street my whole life[;] so I saw him all the
time[;] we were very close." She testified that she spent
"[a]lmost every weekend" at her grandfather's house in 2006. This
also allowed her to visit her father who was residing there at the
time. When asked to describe her relationship with her uncle
Frank in 2006, Kelsey responded: "I've never had a relationship
with my uncle." She did not see decedent again or have any form
of contact with him after her father's wake.
Chad testified that he enlisted in the Navy a week after his
father Alfred, Jr.'s death in 2006. According to Chad, decedent
seemed confused during this time period in 2006. He too did not
see decedent again and did not have any contact with him after his
father's death. Nicholas was twenty-four years old at the time
his father Alfred, Jr. committed suicide. Unlike his two siblings,
Nicholas testified that he did not see or have any kind of regular
contact with his grandfather in 2006 "because I was kind of
strained [sic] with my father." He learned of his grandfather's
12 A-4532-14T1
passing from his mother, Peggy O'Dowd. Plaintiffs rested after
Nicholas's testimony.
Defendant called William Ray Smith as his first witness.
Smith is the son of decedent's daughter. She survived her father's
passing but died before this trial began in April 2015. Smith is
decedent's oldest grandchild. Unlike his cousins, Smith was
unaffected by decedent's repudiation of the 2001 Will. His bequest
remained the same in the 2007 Will. Smith testified that when he
was a child he lived with his maternal grandparents for
approximately twenty years, including his high school years. He
said his grandparents treated him like a son. In response to
defense counsel's question, Smith testified that from 2000 until
decedent relocated to North Carolina with Frank in 2006, he saw
his grandfather on a regular schedule "every other week." His
visits usually lasted "a couple of hours" and at times included
having dinner with him. When asked to describe his grandfather's
demeanor and cognitive abilities during this time, Smith stated
that "[h]e had his good days . . . and his bad days."
The Pequannock Police Department contacted Smith after
Alfred, Jr.'s suicide and requested that he come to decedent's
residence. After Alfred, Jr.'s death, Smith stayed at decedent's
residence until his uncle Frank arrived approximately four days
later. Smith testified that decedent was "very depressed" and
13 A-4532-14T1
inconsolable during this time. Smith made clear, however, that
decedent understood the gravity of the situation; but he was in
disbelief over his son's death. Smith testified that even at
Alfred, Jr.'s wake decedent was able to communicate and tell him
what was on his mind.
Frank and his wife Jacqueline were the last two witnesses to
testify. Frank testified that he and Jacqueline went to decedent's
house after Alfred, Jr.'s death to assess the situation and assist
with the burial arrangements. According to Frank, his father only
required assistance "with meals and paying bills[.]" He emphasized
that his father needing assistance with these two particular tasks
was not necessarily indicative of any age-related degeneration or
limitation. His mother (decedent's wife) had cooked all of the
family's meals and paid the household expenses during the entire
time his parents lived together as husband and wife. His father
"never cooked in his life."
Frank testified that his father stopped driving after his
brother's suicide. Decedent relied on him for transportation.
Jacqueline testified that decedent knew who she was and was happy
to see her. He was also understandably distraught and upset over
his son's death. Jacqueline claimed she was able to maintain
productive conversations with her father-in-law during the time
she was with him in this State. She testified that he confided
14 A-4532-14T1
in her his fear of being left alone. According to Jacqueline,
decedent was receptive to the idea of moving to North Carolina to
be near his son Frank and her.
Jacqueline returned to North Carolina on January 9, 2007.
Frank remained behind to care for his father. On March 1, 2007,
decedent executed a new Will in New Jersey. Frank and his father
flew to North Carolina shortly thereafter. Upon decedent's arrival
in North Carolina, Jacqueline and Frank rented an apartment for
him to live, located across the street from their home.
Jacqueline testified that she became very close to decedent
during the time he lived across the street from her home. In
fact, she voluntarily assumed most of the responsibility for his
care. They worked together on house chores or mini-projects,
including the construction of a fence. Jacqueline testified that
decedent was able to engage in conversations "most of the time."
However, there were times when he became confused. This confusion
could last for hours or for days. Conversely, there were times
when he was lucid for days.
In May 2007, Jacqueline took decedent to see a doctor because
she was concerned about his weight and frailness. After engaging
in conversation with him, the doctor told Jacqueline that he
believed decedent was suffering from Alzheimer's disease. The
doctor suggested that he submit to certain cognitive tests to
15 A-4532-14T1
confirm the diagnosis. Decedent chose not to take the tests;
Jacqueline testified that she did not attempt to persuade him
otherwise. The doctor suggested that decedent take Aricept, a
medication designed to slowdown the progression of the symptoms
of Alzheimer's.4 Jacqueline agreed.
Jacqueline testified that decedent began to decline
physically and mentally in 2009. Frank corroborated his wife's
testimony. He testified that his father was in "real good shape"
for approximately two years after his move to North Carolina.
Alfred, Sr. died on August 18, 2011. Frank testified that he did
not contact O'Dowd or any of Alfred, Jr.'s children to inform them
of his passing. Frank provided the Morris County Probate Clerk
with an address where he believed they may be residing. According
to Frank, the Probate Court told him that he was not legally
obligated to notify these individuals directly. He was only
obligated to place a formal notification in the newspaper. Frank
complied accordingly.
4
Dr. Bock testified that Aricept is a medication for dementia and
is typically prescribed to dementia patients as part of an
aggressive treatment plan. Dr. Bock explained that he did not
prescribe Aricept for decedent because it only slows the on-set
of dementia. He opined it would have been futile given decedent's
deteriorating state.
16 A-4532-14T1
II
When a judge sits as the trier of fact in a bench trial, the
judge must make factual findings based on the evidence presented
by the parties. In this case, the evidence consisted primarily
of the testimony of the witnesses. Here, Judge Hansbury found
"no problem with credibility of anyone. I really think everybody
pretty much told me the truth." Our standard of review of Judge
Hansbury's factual findings is well-settled. "Factual findings
premised upon evidence admitted in a bench trial 'are binding on
appeal when supported by adequate, substantial, credible
evidence.'" Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co.
v. Pa. Mfrs.' Ass'n Ins. Co.,
215 N.J. 409, 421 (2013) (quoting
Cesare v. Cesare,
154 N.J. 394, 411-12 (1998)). See also Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 484
(1974). This deference is especially appropriate "when the
evidence is largely testimonial and involves questions of
credibility." Sipko v. Koger, Inc.,
214 N.J. 364, 376 (2013),
(quoting Cesare, supra,
154 N.J. at 412).
Guided by these standards, we discern no legal basis to
disturb Judge Hansbury's factual findings. However, we review
de novo and afford no deference to the trial court's rulings which
constitute a determination of law. Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co.,
202 N.J. 369, 382-83 (2010).
17 A-4532-14T1
As the parties contesting decedent's 2007 Will, plaintiffs
bear the burden of proving undue influence. In re Estate of
Stockdale,
196 N.J. 275, 303 (2008). Furthermore, undue influence
is a form of fraud that must be proven by clear and convincing
evidence. In re Niles Trust,
176 N.J. 282, 300 (2003). Our
Supreme Court has held that
undue influence is 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 re Estate of Folcher,
224 N.J. 496, 512
(2016) (quoting Stockdale, supra,
196 N.J. at
302-03).]
Here, Judge Hansbury reviewed the evidence presented at trial
and did not find any evidence to support the claim of undue
influence by Frank. Judge Hansbury found decedent's decision to
repudiate the 2001 Will was based primarily on Alfred, Jr.'s
suicide and the reasons he believed precipitated it.
I find the defendant [Frank] credible and I
do find the decedent was extremely upset at
the loss of his son and it's not hard to
imagine that. I have never suffered through
a suicide; but, to lose a child I've been told
is the worst thing in the world. It's worse
than losing anybody else and to lose a child
at his own hands has got to be the most
traumatic experience one can have.
18 A-4532-14T1
So, Senior now had one son and the testimony
through the defendant here was that he blamed
Peggy and the kids for Junior's suicide.
That's not out of the blue, because, given the
nature of the marriage, . . . I can conclude
that that's a legitimate thought of the
decedent. The TRO's, the divorce, the
separation between them, the lack of contact
between plaintiff and defendants and the
decedent for all those years, meaning from the
date of the wake forward, it fits with that
conclusion. I find it a credible statement.
As the trier of fact, Judge Hansbury chose to rely on this
evidence to support his legal conclusion. We review a trial
judge's legal conclusions de novo. The evidence amply supports
Judge Hansbury's conclusion. It is undisputed that O'Dowd and her
children severed all contacts with decedent immediately after
Alfred, Jr.'s suicide. When decedent relocated to North Carolina,
Frank and Jacqueline were his only family. Finally, decedent's
decision to include in the 2007 Will the same $30,000 bequest to
his grandson Smith that he included in the 2001 Will is further
evidence that he was acting under his own volition.
We next address plaintiffs' argument claiming Judge Hansbury
erred when he found decedent had the testamentary capacity to
execute the 2007 Will. We begin our analysis of this issue by
noting that "[t]he 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
19 A-4532-14T1
opportunity of seeing and hearing the witnesses and forming an
opinion as to the credibility of their testimony." Matter of Will
of Liebl,
260 N.J. Super. 519, 523 (App. Div. 1992) (quoting
Gellert v. Livingston,
5 N.J. 65, 78 (1950)), certif. denied,
133 N.J. 432 (1993). Plaintiffs must rebut the presumption that "the
testator was of sound mind and competent when he executed the
will." Id. at 524 (quoting Gellert, supra,
5 N.J. at 71).
Plaintiffs must satisfy this burden of proof by clear and
convincing evidence. Ibid.
Plaintiffs rely on the testimony of Dr. Bock in support of
their contention that decedent lacked testamentary capacity when
he executed the 2007 Will. In rejecting this argument, Judge
Hansbury accepted as credible the testimony of John A. Snowdon,
Sr., the attorney who drafted the March 1, 2007 Will and was
present when decedent executed it. Judge Hansbury noted that
Snowdon met with decedent approximately two weeks after Alfred,
Jr. died, and personally discussed with decedent what plans he had
concerning the disposition of his estate.
Following this meeting, Snowdon sent decedent drafts of the
Will for his review and approval. Judge Hansbury specifically
found that this process took approximately six weeks, which "was
plenty of time [for decedent] to reflect . . . plenty of time to
calm down, to overcome the initial shock of losing his son[.]"
20 A-4532-14T1
Stated differently, decedent was not pressured to reach this
decision. Judge Hansbury also did not find strange or suspicious
that Snowdon did not retain any notes in his file of his meetings
with decedent. The judge concluded:
I do find that the [decedent] had sufficient
testamentary capacity to execute the
documents. He went in and out. That I find,
not a problem. He suffered from dementia,
that I find; but, there's [no] evidence that
he was incapable of understanding what his
desires were and as I said, even the doctor
said he could decide what to do with his body.
. . . .
So, I do find that he had sufficient capacity
to execute the Will, understanding that he
suffered from dementia, had bad days and had
good days.
The evidence presented at trial, including Dr. Bock's
testimony, supports this finding. There is no question that
decedent suffered from dementia that was progressing commensurate
with his age and was likely exacerbated by the emotional trauma
associated with Alfred, Jr.'s death. The testimony of his grandson
Smith corroborated Dr. Bock's testimony in one key respect. Both
of these witnesses testified that decedent had days in which he
was able to have "normal" conversations.
This court has held that a person who may at times lack
testamentary capacity may be deemed capable of executing an
enforceable will if they have "lucid intervals." See Wallhauser
21 A-4532-14T1
v. Rummel,
25 N.J. Super. 358, 366 (App. Div. 1953); see also In
re Politowicz,
124 N.J. Super. 9, 12 (App. Div. 1973). We discern
no legal basis to disturb Judge Hansbury's well-reasoned legal
conclusion upholding the validity of the March 1, 2007 Will.
We affirm the judgment of the Chancery Division substantially
for the reasons expressed by Judge Hansbury in his oral opinion
delivered from the bench on April 29, 2015.
Affirmed.
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