Insurance proceeds are non probate assets
IN THE MATTER OF THE
TRUST UNDER THE WILL
OF FRANCES T. SHAW AND
THE SHAW FAMILY TRUST,
DATED DECEMBER 21, 1995.
____________________________
Argued October 3, 2019 รข€“ Decided October 24, 2019
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Camden County, Docket No. CP-
0184-2017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0318-18T4
Defendant Janice Countess appeals from a July 25, 2018 Chancery
Division order granting summary judgment to plaintiff Carolyn Shaw. That
same order granted plaintiff a judgment totaling $36,961.50. We affirm.
The parties are sisters. In 1995, their parents, Frances and Larnie Shaw,
prepared a number of estate planning documents. One of the documents was a
testamentary trust created for the benefit of the parties and their sister, Shirley.1
This trust, created by Frances was called the "Frances T. Shaw Trust," but it also
was known as "Credit Shelter Trust." Janice and Larnie were designated as co-
trustees of the Credit Shelter Trust.
According to the terms of the Credit Shelter Trust, if Larnie predeceased
his daughters, the trust principal and accrued income were to be divided equally
among Carolyn, Janice and Shirley. However, Carolyn's one-third share was to
be distributed to a second trust, known as the "Shaw Family Trust." Carolyn
was the sole beneficiary of the Shaw Family Trust. Larnie was named as primary
trustee of this second trust, and Janice was designated as successor trustee.
In 2004, Larnie and his three daughters executed a family agreement
whereby all parties agreed that Carolyn would receive her inheritance outright
upon Larnie's death. Frances predeceased the formation of the 2004 agreement.
Consistent with the terms of the 2004 agreement, in 2005, Larnie signed
and submitted paperwork to Northwestern Mutual Insurance Company to
1
We refer to members of the Shaw family by their first names for the sake of
clarity. We intend no disrespect by this practice.
A-0318-18T4
2
designate Carolyn as the sole and direct beneficiary of his life insurance policy.
In 2007, he and his daughters reconvened to execute a supplemental family
agreement, which terminated the Credit Shelter Trust, and distributed all its
accrued interest and assets to Larnie.
The record demonstrates that less than two months after Larnie's death in
2016, Janice removed Carolyn as sole beneficiary on the Northwestern Mutual
policy and designated the Frances T. Shaw Trust as the new beneficiary. Janice
represented she was sole trustee of this trust, even though it had been terminated
by family agreement.
In February 2017, Northwestern Mutual complied with Janice's request
and paid the insurance policy proceeds, totaling $136,451.97, to the trust. These
monies were deposited into a TD Bank account controlled exclusively by Janice.
Only $99,490.47 remained in this account as of November 2017.
When Carolyn learned Janice had diverted these insurance proceeds she
requested that Janice turn over these monies to her. Janice refused, so Carolyn
filed a complaint and Order to Show Cause to recoup the diverted proceeds.
Following a hearing, Judge Nan S. Famular enjoined Janice from dissipating the
insurance proceeds and required her to provide an accounting of these funds.
A-0318-18T4
3
The judge also directed Northwestern Mutual to produce copies of any and all
documents related to the insurance policy.
Northwestern Mutual complied with this order and Carolyn's counsel
produced the pertinent insurance documents at a subsequent case management
conference. As a result of that conference, Judge Famular ordered Janice to turn
over a check for the remaining insurance proceeds to Carolyn's counsel, so the
proceeds could be held in trust. Because Janice had not yet accounted for the
missing insurance proceeds, Judge Famular again ordered Janice to account for
all expenditures from the TD Bank account. No such accounting was produced.
Accordingly, by order dated May 8, 2018, the court authorized Carolyn's counsel
to release the remaining funds directly to Carolyn.
Carolyn moved for summary judgment arguing that the documents
produced by Northwestern Mutual clearly established Janice removed Carolyn
as the sole beneficiary of Larnie's insurance policy approximately two months
after Larnie's death. Carolyn further contended Janice wrongfully diverted these
funds to the Frances T. Shaw Trust, despite knowing that trust had been
terminated. Moreover, Carolyn claimed the Northwestern Mutual documents
substantiated Janice's receipt of the policy proceeds.
A-0318-18T4
4
Judge Famular concluded Janice failed to produce any proofs to rebut
Carolyn's assertions. The judge noted that Janice "talk[ed] about the errors that
are contained in [plaintiff's] certification. The things that she challenges are
unimportant . . . . She doesn't quite directly address why she changed . . . the
beneficiary designation on the Northwestern policy . . . ." Finding the
beneficiary designation should never have been changed and there were no
material facts at issue, Judge Famular granted summary judgment to Carolyn
and entered judgment against Janice in the amount of $36,961.50.
We review a ruling on a summary judgment motion de novo, applying the
same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). Hence, we consider, as the motion judge
did, "'whether the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.
Div. 2017) (citation omitted).
A party opposing summary judgment does not create a genuine issue of
fact simply by offering a sworn statement. Carroll v. N.J. Transit, 366 N.J.
A-0318-18T4
5 Super. 380, 388 (App. Div. 2004). "'[C]onclusory and self-serving assertions'
in certifications without explanatory or supporting facts will not defeat a
meritorious motion for summary judgment." Hoffman v. Asseenontv.com, Inc.,
404 N.J. Super. 415, 425-26 (App. Div. 2009).
What is required of a party opposing summary judgment is affirmative
evidence that is competent, credible, and shows that there is a genuine issue of
material fact in dispute that must be resolved by the factfinder at trial. R. 4:46-
2(c). Summary judgment will not be precluded by self-serving statements,
Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed
facts "of an insubstantial nature." Miller v. Bank of Am. Home Loan Servicing,
LP, 439 N.J. Super. 540, 547 (App. Div. 2015) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 523 (1995)). Applying these standards, we
discern no reason to disturb the summary judgment ruling of Judge Famular.
It is well established that life insurance proceeds are to be paid to a
beneficiary, based on contract principles. Such proceeds are considered non-
probate assets, so they are not part of an individual's estate. Edgardo Vasconi
v. Guardian Life Ins. Co., 124 N.J. 338, 344 (1991). A "designated beneficiary
of a life insurance policy has a vested right to the insurance proceeds payable in
the event [s]he survives the insured subject to divestment only if the insured
A-0318-18T4
6
changes the beneficiary in the manner provided by the policy." Prudential Ins.
Co. of Am. v. Prashker, 201 N.J. Super. 553, 557 (App. Div. 1985) (citation
omitted). Further, the "failure of an insured to change the beneficiary [of a life
insurance policy] is indicative of an intent not to effect a change." Gerhard v.
Travelers Ins. Co., 107 N.J. Super. 414, 425 (N.J. Ch. 1969).
Here, it is uncontroverted that Larnie designated Carolyn as the
beneficiary of the Northwestern Mutual policy in 2005. That beneficiary
designation remained intact until Larnie died. Janice only received the
Northwestern Mutual proceeds because she removed Carolyn as the designated
beneficiary of this policy shortly after Larnie's death. Janice then admitted to
spending $36,961.50 of these proceeds before she was enjoined from further
dissipation of the policy sum. Janice never accounted for her expenditures.
We are satisfied Judge Famular carefully considered the evidential
materials in the light most favorable to Janice, before concluding there was no
evidence to permit a finding other than that Janice had misappropriated a portion
of the Northwestern Mutual life insurance proceeds. Having considered the
same evidential materials and the law pertaining to defendant's arguments, we
affirm substantially for the reasons Judge Famular stated in her opinion.
A-0318-18T4
7
To the extent defendant raises issues which were not raised below, we
decline to address those issues. Appellate courts will not consider issues that
are not raised at the trial level when given an opportunity to do so, "unless the
questions so raised on appeal go to the jurisdiction of the trial court or concern
matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
235 (1973) (citing Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548
(App. Div. 1959)). We are satisfied the issues Janice neglected to address before
Judge Famular do not implicate jurisdictional issues or matters of great public
interest.
Any remaining arguments advanced by Janice lack sufficient merit to
warrant additional discussion. R. 2:11-3(e)(1)(E).
Affirmed.
Monday, November 11, 2019
Insurance proceeds are non probate assets IN THE MATTER OF THE TRUST UNDER THE WILL OF FRANCES T. SHAW
Sunday, November 10, 2019
Court explains bequests of brokerage account. IN THE MATTER OF THE ESTATE OF VICTOR VINCENT ALFIERI
Court explains bequests of brokerage account.
IN THE MATTER OF THE ESTATE OF VICTOR VINCENT ALFIERI IN THE MATTER OF THE ESTATE OF ANTOINETTE ALFIERI (P-002363-2011 AND P-000377-2013, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED), A-2847-16T4/A-3044-16T4 (N.J. Super. Ct. App. Div. 2019)
IN THE MATTER OF THE
ESTATE OF VICTOR
VINCENT ALFIERI,
Deceased.
___________________________
IN THE MATTER OF THE
ESTATE OF ANTOINETTE
ALFIERI,
Deceased.
___________________________
Argued November 26, 2018 – Decided October 3, 2019
Before Judges Fasciale, Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Morris County, Docket Nos. P-
002363-2011 and P-000377-2013.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2847-16T4
A-3044-16T4
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
These consolidated appeals and cross-appeals challenge several Chancery
Division orders in a probate matter involving bequests in wills executed by
Victor and Antoinette Alfieri. Victor and Antoinette 1 were two of seven
siblings.2 They were unmarried and lived together in East Hanover (the East
Hanover property) until Victor died in 2011. Antoinette died two years later in
2013. Having no children of their own, in wills that mirrored each other, each
had bequeathed his or her entire estate to the surviving sibling, and, upon that
sibling's death, to specified siblings as well as nieces, nephews, grandnieces,
and grandnephews. Because Victor predeceased Antoinette, Antoinette's will,
1
We refer to the parties by their first names to avoid any confusion caused by
their common surnames. We intend no disrespect by this informality.
2
Three of the siblings predeceased Victor and Antoinette.
A-2847-16T4
2
bequeathing sizeable assets, is at the core of these appeals. These assets
included bequests of $40,000 each to seven specified nieces and nephews, and
Victor's brokerage account worth over $600,000 to six grandnieces and
grandnephews.
The central issues raised in these appeals are whether the brokerage
account, which was transferred from one firm to another prior to Victor's death,
adeemed and should thereby pass to the residuary as claimed by the co-
executors; whether the co-executors mishandled the East Hanover property; and
whether one of the nephews omitted from Antoinette's will was entitled to a
$40,000 bequest. The trial court determined that the brokerage account
adeemed, that the omitted nephew was not entitled to the bequest, and that the
co-executors did not mishandle the East Hanover property. Other related issues
include the denial of the co-executors' motion for sanctions under the frivolous
litigation statute, N.J.S.A. 2A:15-59.1; the denial of a motion to intervene filed
by one of the grandnephews; and the award and denial of counsel fees.
Specifically, Barbara Morton Stella, a niece of Victor and Antoinette,
appeals from the February 2, 2016 orders, denying her motion for a declaratory
judgment and granting summary judgment to the Estates; the May 6, 2016 order,
denying reconsideration of the summary judgment order, which determined that
A-2847-16T4
3
the brokerage account adeemed; the June 27, 2016 order, awarding counsel fees
to the Estates' attorneys; and the January 26, 2017 order, approving the final
accounting of the Estate of Victor Alfieri (Victor Estate) and the Estate of
Antoinette Alfieri (Antoinette Estate) (collectively, the Estates). Barbara's son,
Matthew Stella, a grandnephew of Victor and Antoinette, cross-appeals from the
January 26, 2017 order, denying his motion to intervene. Barbara's brother,
Charles Bradley Morton III, a nephew of Victor and Antoinette, appeals from
the February 2, 2016 order, denying him a $40,000 bequest from the Antoinette
Estate; and the June 27, 2016 order, denying him counsel fees. Finally, the
Victor Estate cross-appeals from the May 6, 2016 order, denying its motion for
sanctions against Barbara pursuant to the frivolous litigation statute. Having
considered the arguments and applicable law, we reverse the provision of the
February 2, 2016 summary judgment order, determining that the brokerage
account adeemed. In all other respects, we affirm.
I.
We derive the following facts from the record. Victor and Antoinette's
long-time neighbor, friend, and attorney, Donald McHugh, drafted both of the ir
wills. Victor executed his will on July 20, 2006, and Antoinette executed hers
on July 20, 2007. Both wills named Joanne Cannici and Felicia Feldman, two
A-2847-16T4
4
of their nieces, as co-executors.3 In the second article of both wills, the
surviving sibling inherited the deceased sibling's entire estate. However, if the
surviving sibling was disabled or unable to live independently and manage his
or her own affairs, then all the assets of the estate would pass to a testamentary
trust established to support the disabled or dependent sibling.
The third article of both wills bequeathed certain assets to Victor and
Antoinette's nieces, nephews, grandnieces, and grandnephews upon the death of
the surviving sibling and the termination of the testamentary trust , if one had
been established. Pertinent to this appeal, article three of Antoinette's will
specifically provided:
If my beloved brother shall not survive me or upon his
demise during the trust term, then I bequeath and
appoint the residue of my estate, real and personal, as
follows:
A. The balance of the pre-death shareholdings of
VICTOR VINCENT ALFIERI in his brokerage account
at Smith Barney, in equal shares, to each of my
grandnephews and grandnieces, who are the
grandchildren of my siblings, ELIZABETH JANE
CANNICI, JOHN CHARLES ALFIERI[,] and ANNA
3
Additionally, on July 20, 2007, Victor and Antoinette each executed durable
powers of attorney, designating each other as power of attorney. Joanne and
Felicia were designated as "alternate co-attorneys in fact" in the event Victor
and Antoinette were "unable to act for any reason[,]" including death, removal
or resignation.
A-2847-16T4
5
MARIE ALFIERI MORTON, [4] per capita and not per
stirpes.
B. The sum of Forty Thousand . . . Dollars to each
of my following nieces and nephews, JOANNE
CANNICI, JOHN CANNICI, STEPHEN CANNICI,
FELICIA ALFIERI FELDMAN, LINDA ALFIERI
WILLMAN, BRENDA ANN MORTON[,] and
BARBARA ANN MORTON STELLA, per stirpes and
not per capita.
C. The rest, residue and remainder of my estate to
my siblings, ELIZABETH JANE CANNICI, JOHN
CHARLES ALFIERI[,] and ANNA MARIE ALFIERI
MORTON, per stirpes and not per capita.
The fourth article expressly exempted Antoinette's brother, Ralph Louis
Alfieri, and his family from any bequests because she had "no contact with him
for many years." Additionally, the seventh article appointed as trustee "the
surviving parent of [any] beneficiary" who was under twenty-five years of age
when the estate became payable, "to have and to hold . . . in trust," "for the
health and education of such beneficiary . . . until such beneficiary attains the
age of [twenty-five] years."
In July 2011, Victor and Antoinette executed substantively identical
codicils. Antoinette's codicil amended paragraph B of the third article and
4
Barbara, Charles, and Brenda Ann Morton are the children of Anna Marie
Alfieri Morton. In addition to her son, Matthew, Barbara has a daughter,
Christina Stella.
A-2847-16T4
6
clarified that "should STEPHEN CANNICI predecease me, his share shall pass
to his natural born children and not to COURTNEY CANNICI. She is the child
of LORI CANNICI and was adopted by STEPHEN CANNICI." Other than this
amendment, the codicil "ratif[ied] and republish[ed]" Antoinette's July 20, 2007
will.
By 2011, Victor and Antoinette were in their eighties and experiencing
failing health. Prior to his death, with the assistance of McHugh, Victor took
various steps for healthcare and estate planning purposes. Among them, on
August 30, 2011, Victor executed a deed giving himself a life estate in the East
Hanover property he shared with Antoinette, and transferred the remainder
interests to designated siblings and nieces as tenants in common. Specifically,
one-third was transferred to each of his siblings, Elizabeth Jane Cannici and
John Charles Alfieri, and the remaining one-third was divided equally between
his nieces, Brenda Ann Morton and Barbara Morton Stella.
On the same date, Victor transferred the assets in his Morgan Stanley
Smith Barney brokerage account to Oppenheimer & Co., another brokerage
firm. The brokerage account had substantially increased in value from
approximately $10,000 in 2006 to over $600,000 in 2011. During his
deposition, when questioned about the testamentary intent of the parties in
A-2847-16T4
7
relation to the brokerage account, McHugh testified he had no discussion with
Victor or Antoinette about transferring the assets in the brokerage account.
However, McHugh acknowledged that in 2011, when he "specifically asked
[Victor]" whether he "want[ed] 600 and some-odd thousand dollars to go to [his]
grandnieces and [grand]nephews[,] . . . his answer was, '[n]o, I do not.'"
Additionally, during their respective depositions, both Felicia and Joanne denied
ever having any discussion with Victor regarding the Smith Barney account.
Victor Puglio, an Oppenheimer broker, was one of three financial advisors
recommended to Victor by McHugh. Puglio testified during his deposition that
Victor transferred the assets from Smith Barney to Oppenheimer for "[a]
consolidation and review." Puglio denied ever meeting or even speaking with
Antoinette.
In addition, on August 30, 2011, Joanne and Felicia established the
"Antoinette E. Alfieri Supplemental Benefits Trust" (the SBT), "an [i]rrevocable
[t]hird-[p]arty [t]rust" established for "the sole benefit of and for the limited
purposes" of "supplement[ing] the personal needs, medical care and general
well-being of [the] [l]ifetime [b]eneficiary," Antoinette. "[S]ubject to prior
payment of the bequests set forth in [Antoinette's] [w]ill[,]" the remainder
beneficiaries of the SBT were Antoinette's siblings, Elizabeth Jane Cannici and
A-2847-16T4
8
John Charles Alfieri, and the children of Antoinette's deceased sibling, Anna
Marie Alfieri Morton, which included Barbara. Joanne and Felicia were
appointed co-trustees of the SBT, and their execution of the trust agreement was
witnessed by McHugh. A few days earlier, utilizing his power of attorney,
Victor had transferred $740,000 of Antoinette's assets to Joanne and Felicia, and
resigned his power of attorney in favor of them. Additionally, Victor transferred
$178,746.86 from his money market account to Antoinette, and $280,000 from
his checking account to Joanne and Felicia.
Shortly thereafter, on September 23, 2011, Victor died. At the time of
Victor's death, Antoinette was residing at a rehabilitation facility following a
hospitalization. Antoinette was later transferred to an assisted living facility,
where she resided for approximately fifteen months, before being transferred to
a nursing home about two months before her death on January 23, 2013.
Because Antoinette never returned to live independently in the East Hanover
property, prior to her death, Barbara's attorney, Meredith Grocott, requested in
writing that the co-executors establish the testamentary trust for Antoinette as
delineated in the second article of Victor's will. Grocott also requested an
accounting of Victor's estate. McHugh responded in writing on the co-
executors' behalf, ultimately denying both requests.
A-2847-16T4
9
In his written responses, McHugh explained that Barbara was not entitled
to "financial information" regarding Victor's estate because Antoinette was the
sole beneficiary. Additionally, according to McHugh, the testamentary trust was
not established because, based on "Antoinette's circumstances and medical
prognosis, the conditions precedent to establishment of the trust in Victor's Will
have not been met." McHugh explained that "the estate . . . intend[ed] to
establish the Trust . . . if her medical and mental condition meets the standards
noted in the Will" because the trust would "protect the assets due to Antoinette
as sole beneficiary from [Medicaid's] long term care medical spend down"
requirements. McHugh noted, however, that since no trust was established, any
"court filing" by Barbara "would certainly be considered a frivolous lawsuit."
After Antoinette died, McHugh reiterated in correspondence dated April 10,
2013, that "Barbara . . . and her children" were "not beneficiaries" of Victor's
Will and no "trust was established" before Antoinette's death in which Barbara
would have an interest.
As a result, on June 12, 2013, Barbara filed a verified complaint to compel
an accounting and distribution of Victor's assets. In her complaint, Barbara
alleged that given Antoinette's death, the testamentary trust established under
the second article of Victor's will for the benefit of Antoinette "pass[ed] to the
A-2847-16T4
10
remainder beneficiaries" as set forth in the third article of Victor's will, of which
Barbara was "a remainder beneficiary." According to the complaint, "[e]ven if
the co-executors . . . fail[ed] to fund the Trust, the assets in [Victor's] estate
would then become an asset of the Estate of Antoinette," of which Barbara was
"a residuary beneficiary." Barbara also alleged in the complaint that "[d]espite
being a [one-sixth] owner of the East Hanover property," the co-executors
wrongfully withheld notice of her interest in the property. She claimed the first
time she became aware of her interest was "nearly five months after the deed
was executed and nearly four months after [Victor's] death." She also alleged
that the co-executors "wrongfully denied [her] access to the . . . property" until
August 8, 2012. As a result, she was seeking "damages for breach of fiduciary
duty" and "for denying [her] access" to the East Hanover property. Upon receipt
of Barbara's complaint, pursuant to Rule 1:4-8, McHugh demanded in writing
that she withdraw her complaint because it was frivolous litigation. In response,
Barbara refused.
By July 2013, the bulk of Victor's estate was transferred to Antoinette's
estate. At the direction of the co-executors, in a July 9, 2013 letter, McHugh,
serving as the attorney of the co-executors, notified each of the intended
beneficiaries of the bequests. Specifically, the letter indicated that "the former
A-2847-16T4
11
Smith Barney account," valued at approximately $610,000 at the time of Victor's
death, would be distributed equally to the six grandnieces and grandnephews
named in Antoinette's will, and $40,000 would be allocated to each of the seven
nieces and nephews named in the will "from other estate assets." The letter
further advised that as stipulated in Antoinette's will, a trust would be
established with their respective share for any grandnieces and grandnephews
under the age of twenty-five.
Notwithstanding the position taken by McHugh on behalf of the co-
executors in the July 9, 2013 letter, on May 23, 2014, the co-executors filed a
verified complaint to approve the proposed accounting and distribution of the
Antoinette Estate, claiming that the bequest to the grandnieces and
grandnephews was "subject to ademption." According to the complaint, the
third paragraph of Antoinette's Will left "'the balance of the pre -death
shareholdings of [Victor's] . . . brokerage account at Smith Barney'" to the named
grandnephews and grandnieces. However, "[t]he 'balance of pre-death
shareholdings in Victor's Smith Barney account' as of Antoinette's date of death
[was] valued at 'zero' as neither the account nor the funds . . . existed[,]" having
been "transferred to Oppenheimer by Victor in August 2011, inherited by
Antoinette, assimilated within her account and rebalanced to suit her particular
A-2847-16T4
12
needs." The complaint alleged further that while "the Estate of Antoinette" was
"ready for distribution[,]" with the value of the Oppenheimer account passing to
the residuary, Barbara's lawsuit "against the Estate of Victor . . . seeking the
posthumous funding of a supplemental benefits needs trust for the benefit of the
now deceased Antoinette[,]" would "adversely impact the residuary
beneficiaries of the Estate of Antoinette."
On June 13, 2014, the court consolidated the two estate litigations. In a
hearing conducted prior to the consolidation, the court determined Barbara was
entitled to an accounting and limited discovery of Antoinette's medical records.
The court also entered an order indicating that Barbara and the co-executors
"consent[ed] to the jurisdiction of [the c]ourt over the Estate of Antoinette" to
"determine whether Courtney Cannici [was] a beneficiary of the brokerage
account" referenced in both Victor's and Antoinette's wills, and to "determine
how and at what time the brokerage account should be valued" for purposes of
distribution.
On July 25, 2014, Barbara filed an answer to the co-executors' complaint
"as beneficiary and nominated trustee" of Antoinette's will, claiming various
exceptions to the accounting. In particular, she claimed that the brokerage
account was not subject to ademption. Barbara's brother and Antoinette's
A-2847-16T4
13
nephew, Charles, also filed an answer, claiming exceptions to the accounting
and asserting he "should be deemed a residuary beneficiary" of Antoinette's Will
under the anti-lapse statute, N.J.S.A. 3B:3-35, which provides that:
If a devisee who is a . . . lineal descendant of a
grandparent of the testator is dead at the time of the
execution of the will, or fails to survive the testator, or
is treated as if he predeceased the testator, the issue of
the deceased devisee who survive the testator by 120
hours take in place of the deceased devisee and if they
are all of the same degree of kinship to the devisee they
take equally, but if of unequal degree then those of
more remote degree take by representation.
Charles claimed "one-third of the one-third which would have otherwise passed
to his mother, Anna Marie Alfieri Morton, as [she] predeceased Antoinette." In
his answer, Charles also asserted that he "should be deemed to be a beneficiary
of a general devise of $40,000[]" pursuant to the will because "the omission of
his name . . . was an obvious error which [was] contrary to the probable intent
of the testator."
Given the exceptions to the accounting, the court denied the co-executors'
motion for summary judgment without prejudice, and ordered the parties to
engage in discovery, including conducting depositions. In particular, in a March
6, 2015 order, the court ordered the co-executors to comply with Barbara's
discovery requests by answering certain interrogatories and producing relevant
A-2847-16T4
14
documents, and ordered McHugh to provide his scrivener's notes pertaining to
the preparation of Victor's and Antoinette's wills. McHugh later responded that
in 2011, he "discarded" his "checklists and/or notes" associated with the drafting
of the wills.
Following the completion of discovery, the Estates again moved for
summary judgment on all issues. Barbara opposed the motion and cross-moved
for a declaratory judgment, pursuant to N.J.S.A. 2A:16-53 and -55, regarding
the disposition of the brokerage account. Matthew filed a certification with his
mother's cross-motion, requesting that Barbara continue to represent his
interests in the litigation, or, in the alternative, requesting "permission to join"
the litigation. Additionally, Charles moved for summary judgment on the anti-
lapse issue and to be deemed a beneficiary of the $40,000 bequest.
On February 1, 2016, the court issued an oral decision, later supplemented
by a February 2, 2016 written statement of reasons, disposing of several issues.
Regarding Barbara's claim for damages stemming from the co-executors
denying her access to the East Hanover property, the court acknowledged that,
although Barbara's remainder interest in the property vested upon Victor's death,
she did not receive a key until nearly one year later. Nonetheless, the court
rejected Barbara's claim that the co-executors ousted her from the property as
A-2847-16T4
15
"moot." The court reasoned that Barbara no longer had an "interest in the
property" after it "sold in October 2012," and she "received approximately
$70,000" from the sale proceeds. According to the court, Barbara "could have
potentially had a claim for ouster before the home was sold," but took no "action
to enforce her right to access the property."
The court further explained that even if Barbara's claim were viable, she
"failed to provide . . . any appropriate evidence of damages." In that regard, the
court noted that Barbara "submitted a market analysis showing a $30,000
differential between the value of the property at Victor's death and the selling
price of the property[,]" alleging that the "storing of [the] [c]o-[e]xecutor's
personal property diminished the property value." However, the court found
that Barbara "failed to support [her] allegations with an expert opinion." In any
event, the court found "no evidence of . . . wrongdoing" on the part of the co -
executors "in the handling" of the East Hanover property. The court explained
that "[i]f the [c]o-[e]xecutors were concerned about [Barbara] . . . wrongfully
tak[ing] [d]ecedents['] personal belongings," as they claimed, "then [they] acted
rightfully by removing the personal belongings first before giving [Barbara]
access to the property."
A-2847-16T4
16
Addtionally, the court found that Barbara lacked standing to litigate
claims on behalf of Courtney, stating that "the only reference" to Courtney in
the will was that she did "not inher[i]t." Further, the court rejected the
application to remove the co-executors, finding "no evidence" of impropriety on
their part. According to the court, "[t]he only issue" supporting the claim of
impropriety was the "non-funding" of the "trust[]," and this issue was
"withdrawn" when Barbara ceased pursuing her complaint as to Victor's estate.
The court also dismissed Charles' claim to the $40,000 bequest, explaining that
it could not "read into the will that he gets $40,000[,]" as there was "no evidence
of any mistake." In making that determination, the court contrasted Charles'
claim in his supporting certification that he "had a good relationship" with
Antoinette, and "should have been" included, against his deposition testimony
that "[h]e live[d] in Texas and . . . only saw [Antoinette] a few times since the
[19]70's." The court did, however, grant summary judgment to Charles on the
anti-lapse issue, which the Estates conceded, declaring he was a one-third
residuary beneficiary of his deceased mother's interest.
Turning to the ademption issue, the court concluded that "the Smith
Barney account adeemed." Relying heavily on McHugh's deposition testimony,
the court found that "[i]n 2011," when Victor "discovered that the account had
A-2847-16T4
17
risen in value to $600,000," he "expressly stated that he did not intend that
amount to pass to the grandnieces and grandnephews[,]" as "those assets"
constituted "the bulk of Victor's estate." According to the court, as a result,
"Victor emptied the Smith Barney account and hired a financial advisor, Victor
Puglio[,]" as "part of a sophisticated pre-death plan to maximize his estate for
the benefit of Antoinette." The court continued that Victor then "set up an inter
vivos trust and facilitated financial transactions to [the] [c]o-[e]xecutors to be
used to benefit Antoinette."
Thus, the court found that these financial changes "show[ed] Victor's clear
intention not to allow the grandnieces and grandnephews to receive such large
amounts of money from the Estate and instead use the money towards
Antoinette's care." Applying the governing legal principles, the court concluded
that "[s]ince the assets from the Smith Barney account no longer existed at the
time of Antoinette's death, the bequests adeemed." Further, according to the
court, it was "irrelevant to the analysis whether Antoinette was privy to Victor's
actions relating to the Smith Barney account" because "it would not change the
fact that the assets in the account were destroyed and instead used for
Antoinette's benefit." The court stressed "Antoinette never inherited a Smith
Barney account because the account was destroyed prior to her death" and
A-2847-16T4
18
"[t]hus[] Antoinette's Will could not have [bequeathed] property which [was]
never part of Antoinette's Estate to begin with."
The court expressly rejected Barbara's contention "that the Smith Barney
account was not destroyed, but simply changed in form since the contents were
transferred to Oppenheimer & Co[,]" and rejected Barbara's reliance on "case
law holding that no ademption occurred when the decedent simply moved the
money to another bank, another brokerage company, or rolled the money into an
IRA." See In re Estate of Hall,
60 N.J. Super. 597 (App. Div. 1960). According
to the court,
[t]he problem with this argument is that Victor used the
money that he transferred into the Oppenheimer & Co.
account to set up inter vivos trusts for the benefit of
Antoinette. It is clear from the face of the entire Will
that Victor wanted to care for his sister above
everything else. This action did not just move money
from one account to another, [i]t changed the very
purpose and use of this money by Victor. Although
Victor did not include the intent to alter the bequests in
the Codicil, it is clear from his actions that he did not
intend to have his grandnieces and grandnephews split
over $600,000 of Estate funds.
The court also rejected Barbara's assertion that the Estates were "estopped
from claiming ademption" after McHugh previously "affirmed the bequests from
the Smith Barney account were to be made to the grandnieces and
grandnephews." The court determined "it would be inequitable to apply estoppel
A-2847-16T4
19
to this issue" and "completely alter the [d]ecedents' estate planning based upon
. . . McHugh's [erroneous] statements alone." On February 2, 2016, the court
entered two conforming orders, one granting the Estates' motion for summary
judgment and dismissing Barbara's complaint with prejudice, and the other
denying Barbara's cross-motion for declaratory judgment.
Thereafter, Barbara moved for reconsideration, and the Estate of Victor
moved for sanctions against Barbara for frivolous litigation. On May 6, 2016,
the court denied both motions. In an oral opinion, addressing the ademption
issue, the court "concede[d] that [it] made a mistake in the original decision in
indicating the money [from the Smith Barney account] went into a trust." 5
However, the court explained that the factual "error" was of "no consequence"
because "[t]he evidence was clear" that Victor "intended" to "alter[] the purpose
of that money[,]" and it was "not a matter of simply moving one account to
another."
To support its motion for sanctions for filing frivolous litigation, the
Estate of Victor relied on a July 8, 2013 letter sent by McHugh to Barbara's
5
Instead, the record reflects that the SBT funds were held in a separate and
distinct Oppenheimer account, bearing a different account number. As of
September 30, 2011, the SBT account was valued at $719,132.65, while Victor's
Oppenheimer brokerage account was valued at $614,793.09.
A-2847-16T4
20
attorney pursuant to Rule 1:4-8, demanding withdrawal of her verified complaint
because it
intentional[ly] fail[ed] to accurately state the terms of
[Victor's] Will; intentionally [sought] to distort the
decedent's intentions stated in his Will and Codicil;
[sought] a prejudicial interpretation of the Will in
[Barbara's] attempt to better her and her children's
stated beneficiary status in the Will; misstat[ed] the
intentions/actions of both decedents, [Victor and
Antoinette], related to their testamentary intentions and
medical conditions, fail[ed] to disclose to the [c]ourt
that by the time [Victor's] estate was finalized,
[Antoinette] was deceased and you can't establish a
living trust for a dead beneficiary; [and] misstate[d] and
misrepresent[ed] the claimed reasons for her damages
claim.
In rejecting the Estate's application, the court determined that the
frivolous litigation "statute and rule" did not apply because "[t]here was a . . .
good faith [basis] to start this litigation." The court noted that the sanctions
sought were "extremely limited and extremely rare" and intended to apply to
"baseless" cases filed "for the purpose of . . . harassment[.]" However, according
to the court, although Barbara's claims were ultimately unsuccessful, she had
"every right to file a claim[,]" asserting as she had that the conditions precedent
to establishing "a trust" were met "based upon the fact that [Antoinette] . . .
[was] suffering from dementia" and resided in "an assisted living" facility. The
court continued that Barbara's advocacy regarding "[t]he Smith Barney account"
A-2847-16T4
21
was also "clearly a legitimate claim[,]" as was her claim regarding the East
Hanover property.
On June 27, 2016, the court awarded counsel fees and costs to the Estates'
attorneys, totaling approximately $233,913, and denied Charles' request for
counsel fees. While the court found the Estates' attorneys' "hourly rates" to be
"reasonable" and the "[services] rendered appropriate," the court found "no legal
authority" to award the fees sought by Charles' attorney and determined the
services rendered did not fall within the purview of Rule 4:42-9(a)(2) or (3).
On January 26, 2017, the court denied Matthew's cross-motion to
intervene in the litigation. The court found no basis to grant the application
"after [Matthew] did nothing for three years [of litigation] except rely on his
mother's . . . representation of him and her litigation efforts to protect his
interest[.]" In a separate order entered on the same date, the court approved the
final accounting of the Estates, rejecting the objection that open issues regarding
the inheritance tax return precluded granting approval. The court also granted
the Estates' attorneys' requests for additional counsel fees and costs totaling
approximately $32,462. In granting the fees, the court "considered the lengthy
. . . certifications of services submitted by both law firms" and "[found] the
hourly rates to be reasonable," and "the activities that were carried out by
A-2847-16T4
22
counsel . . . necessary[.]" In the same order, the court "dismissed" the litigation
"with prejudice[,]" as all issues were adjudicated. These appeals followed.
On appeal, Barbara and Matthew raise the following points for our
consideration:
[POINT ONE]
. . . THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO THE ESTATES[.]
....
[A]. THE TRIAL COURT ERRED IN
FINDING THAT THE BROKERAGE
ACCOUNT WAS SUBJECT TO
ADEMPTION[.]
[B]. THE TRIAL COURT ERRED IN
FAILING TO RECONSIDER ITS DECISION
REGARDING ADEMPTION[.]
[C]. THE TRIAL COURT ERRED IN NOT
ESTOPPING THE CO-EXECUTORS FROM
ASSERTING THAT THE BROKERAGE
ACCOUNT ADEEMED.
1. THE CO-EXECUTORS ARE
JUDICIALLY ESTOPPED FROM
CLAIMING ADEMPTION.
2. THE CO-EXECUTORS ARE
EQUITABLY ESTOPPED FROM
CLAIMING ADEMPTION.
A-2847-16T4
23
[POINT TWO]
. . . THE TRIAL COURT ERRED IN FAILING TO
ENTER DECLARATORY JUDGMENT THAT THE
GRANDNIECES/NEPHEWS ARE BENEFICIARIES
OF THE BROKERAGE ACCOUNT[.]
[POINT THREE]
. . . THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT DISMISSING THE CLAIM
REGARDING THE REAL PROPERTY[.]
[POINT FOUR]
. . . THE TRIAL COURT ABUSED ITS DISCRETION
IN APPROVING ALL OF THE FEES SOUGHT BY
THE ESTATES[.]
[POINT FIVE]
. . . MATTHEW STELLA, AS AN INTERESTED
PARTY, HAD A RIGHT TO INTERVENE AND THE
TRIAL COURT ERRED IN DENYING SAME[.]
A. MATTHEW STELLA HAD A RIGHT TO
INTERVENE[.]
B. THE TRIAL COURT ERRED IN NOT
PERMITTING INTERVENTION[.]
C. THE TRIAL COURT ERRED IN NOT
PERMITTING MATTHEW STELLA TO
REPRESENT THE CLASS[.]
Charles raises the following points in his cross-appeal:
A-2847-16T4
24
POINT ONE
AN ATTORNEY HAS AN ETHICAL OBLIGATION
TO HIS CLIENTS, AND TO THE BENEFICIARIES
OF THE CLIENTS' ESTATES TO RETAIN AND
PRESERVE ALL FILE NOTES FOR SEVEN YEARS.
POINT TWO
THE INTENTIONAL DESTRUCTION OF THE
SCRIVENER'S NOTES BY AN INTERESTED
PARTY RAISES A PRESUMPTION THAT THE
NOTES WOULD HAVE SUPPORTED THE CLAIM
OF [MORTON].
POINT THREE
WHEN THE SCRIVENER OF THE WILL HAS
INTENTIONALLY DESTROYED THE FILE NOTES,
IN A CASE WHICH ALLEGES AN ERROR ON HIS
PART, DISMISSAL ON SUMMARY JUDGMENT IS
NOT APPROPRIATE.
POINT FOUR
EVEN IF A PRESUMPTION REGARDING THE
INTENTIONAL DESTRUCTION OF THE NOTES
DOES NOT ARISE, SUMMARY JUDGMENT STILL
SHOULD NOT HAVE BEEN GRANTED.
POINT FIVE
THE [FEDERAL TRUST6] CASE IS NO LONGER
BINDING AUTHORITY, AS IT EXCLUDES THE
USE OF EXTRINSIC EVIDENCE, AND THUS IS
6
Fed. Tr. Co. v. Ost,
120 N.J. Eq. 43(Ch. 1937), aff'd,121 N.J. Eq. 608
(E. &
A. 1937).
A-2847-16T4
25
CONTRARY TO THE DEVELOPMENT IN
SUBSEQUENT CASELAW SINCE 1937.
POINT SIX
THE EVIDENCE OF THE TESTATOR'S
STATEMENTS, INCLUDING THE RELATIONSHIP
AMONG THE FAMILY MEMBERS, AND THE
SCRIVENER'S NOTES, OR THE ABSENCE OF THE
NOTES, ARE EVIDENCE OF THE PROBABLE
INTENT OF THE TESTATOR.
POINT SEVEN
THE FILING OF THE CLAIM OF [MORTON] WAS
NOT BARRED BY . . . [RULE] 4:85-1, AS IT DID
NOT SEEK TO SET ASIDE THE PROBATE OF THE
DOCUMENT.
POINT EIGHT
IN AN ACTION TO INTERPRET A LAST WILL
AND TESTAMENT, AN AWARD OF COUNSEL
FEES IS APPROPRIATE WHEN THE PLAINTIFF
HAS PREVAILED.
POINT NINE
THE DISMISSAL OF THE CLAIMS OF BARBARA
. . . SHOULD BE UPHELD, EVEN FOR REASONS
NOT RAISED BY THE SCRIVENER.
In its cross-appeal, the Estate of Victor raises the following point:
[POINT ONE]
. . . THE TRIAL COURT'S RULING DENYING
SANCTIONS AGAINST BARBARA STELLA FOR
A-2847-16T4
26
FRIVOLOUS LITIGATION SHOULD BE
REVERSED[.]
II.
In reverse order, we first address the Estate of Victor's cross-appeal. We
review a trial court's decision on a motion for frivolous lawsuit sanctions under
"an abuse of discretion standard[,]" United Hearts, L.L.C. v. Zahabian, 407 N.J.
Super. 379, 390 (App. Div. 2009) (citing Masone v. Levine,
382 N.J. Super. 181, 193 (App. Div. 2005)), and will only reverse such a decision if "it 'was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment.'" McDaniel v. Man Wai Lee,419 N.J. Super. 482
, 498 (App. Div.
2011) (quoting Masone, 382 N.J. Super. at 193).
Rule 1:4-8 and N.J.S.A. 2A:15-59.1 authorize sanctions and reasonable
attorney's fees against parties for bringing frivolous litigation before the court.
N.J.S.A. 2A:15-59.1(a) provides that a prevailing party of "a civil action, either
[a] plaintiff or defendant, against any other party may be awarded all reasonable
litigation costs and reasonable attorney fees, if the judge finds at any time during
the proceedings or upon judgment that a complaint, counterclaim, cross -claim
or defense of the nonprevailing person was frivolous." To find a complaint
frivolous:
A-2847-16T4
27
[T]he judge shall find on the basis of the pleadings,
discovery, or the evidence presented that either: (1) The
complaint . . . was commenced, used or continued in
bad faith, solely for the purpose of harassment, delay or
malicious injury; or (2) The nonprevailing party knew,
or should have known, that the complaint, . . . was
without any reasonable basis in law or equity and could
not be supported by a good faith argument for an
extension, modification or reversal of existing law.
[N.J.S.A. 2A:15-59.1(b).]
"For purposes of imposing sanctions under Rule 1:4-8, an assertion is
deemed 'frivolous' when 'no rational argument can be advanced in its support,
or it is not supported by any credible evidence, or it is completely untenable. '"
United Hearts, 407 N.J. Super. at 389 (quoting First Atl. Fed. Credit Union v.
Perez,
391 N.J. Super. 419, 432 (App. Div. 2007)). Therefore, "[w]here a party has reasonable and good faith belief in the merit of the cause," a motion for sanctions will be denied. Perez, 391 N.J. Super. at 432. Indeed, "[t]he nature of conduct warranting sanction under Rule 1:4-8 has been strictly construed," and "'the term "frivolous" should be given a restrictive interpretation' to avoid limiting access to the court system." Id. at 432-33 (quoting McKeown-Brand v. Trump Castle Hotel & Casino,132 N.J. 546
, 561-62 (1993)).
Here, we discern no abuse of discretion in the court's denial of the Estate's
motion for sanctions. We agree with the court that while Barbara's claims were
A-2847-16T4
28
largely unsuccessful, they were brought in good faith and were not frivolous
under N.J.S.A. 2A:15-59.1 or Rule 1:4-8(a). Moreover, "a pleading will not be
considered frivolous for purposes of imposing sanctions under Rule 1:4-8 unless
the pleading as a whole is frivolous[,]" United Hearts, 407 N.J. Super. at 394,
"'or of a harassing nature[,]'" id. at 390 (quoting Iannone v. McHale, 245 N.J.
Super. 17, 32 (App. Div. 1990)), neither of which applies here.
III.
We next address Charles' claims. Although Charles delineates several
different point headings in his merits brief, he essentially contends that the court
erred by granting summary judgment to the co-executors on the $40,000
bequest, and denying his motion for counsel fees. Charles contends he should
have been included in the bequest because there was no "specific exclusion" and
the "omission of [his] name was an error in the preparation of the [will]."
Charles continues that a dismissal on summary judgment was not appropriate
where, as here, "the scrivener intentionally destroyed document[s] in violation
of his obligation to retain and preserve them, and the documents might have
favored [Charles]." Further, Charles argues that the court erred in relying on
Ost, 120 N.J. Eq. at 48-49, because it is distinguishable and "has essentially been
overruled" by statute and case law "concerning the 'doctrine of probable intent.'"
A-2847-16T4
29
Finally, Charles asserts the court erred in denying his request for counsel fees
"even for his successful claim on the anti-lapse statute."
A.
We first address the summary judgment ruling. We review "the trial
court's grant of summary judgment de novo under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co.,210 N.J. 512
, 524 (2012)). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Steinberg v. Sahara Sam's Oasis, LLC,
226 N.J. 344,
366 (2016) (quoting R. 4:46-2(c)); see Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).]
"When no issue of fact exists, and only a question of law remains," we
"afford[] no special deference to the legal determinations of the trial court."
Templo Fuente, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan,
140 N.J. 366, 378 (1995)). Thus, "[t]o defeat a motion for
A-2847-16T4
30
summary judgment, the opponent must 'come forward with evidence' that creates
a genuine issue of material fact." Cortez v. Gindhart,
435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State,425 N.J. Super. 1
, 32 (App. Div. 2012)). However, "conclusory and self-serving assertions by one of the parties are insufficient to overcome the motion ," Puder v. Buechel,183 N.J. 428
, 440-41 (2005) (citing Martin v. Rutgers Cas. Ins. Co.,346 N.J. Super. 320
, 323 (App. Div. 2002)), and the opponent must "do more than 'point[] to any fact in dispute' in order to defeat summary judgment." Globe Motor Co. v. Igdalev,225 N.J. 469
, 479 (2016) (alteration in original) (emphasis
omitted) (quoting Brill, 142 N.J. at 529).
In other words, disputes about facts that are "immaterial or of an
insubstantial nature" provide no basis to deny the moving party summary
judgment. Id. at 480 (quoting Brill, 142 N.J. at 529). Rather, "[a]n issue of fact
is genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of the issue
to the trier of fact." R. 4:46-2(c). "The practical effect of [Rule 4:46-2(c)] is
that neither the motion court nor an appellate court can ignore the elements of
A-2847-16T4
31
the cause of action or the evidential standard governing the cause of action."
Bhagat v. Bhagat,
217 N.J. 22, 38 (2014).
Pertinent to the actions underlying these appeals, "[t]he court's primary
goal in interpreting a [will] is to fulfill the [testator's] intent[,]" In re Tr. of
Nelson,
454 N.J. Super. 151, 158 (App. Div. 2018), and a "preponderance-of- the-evidence standard of proof applies to interpretation[.]" Id. at 160. "[T]he goal always is the ascertainment of the testator's intent and it is not to be thwarted by unduly stressing 'the literal meaning' of his words." Id. at 158 (alteration in original) (quoting Fidelity Union Tr. Co. v. Robert,36 N.J. 561
, 565 (1962)). Notably, "in ascertaining intent," the "focus" is "really" on the testator's "'probable intent' because 'it is impossible to determine with absolute certainty [the testator's] actual subjective intent.'" Ibid. (alteration in original) (quoting Morristown Tr. Co. v. McCann,19 N.J. 568
, 572 (1955)).
"In essence, the doctrine of probable intent is a rule of construction or
interpretation[,]" In re Estate of Flood,
417 N.J. Super. 378, 382 (App. Div. 2010), and "represents . . . a 'broader and more liberal approach to will construction' than the prior insistence on formalistic results." Id. at 381 (quoting In re Estate of Burke,48 N.J. 50
, 63 (1966)). While the doctrine "does not
permit a court to 'conjure up an interpretation or derive a missing testamentary
A-2847-16T4
32
provision out of whole cloth,'" Nelson, 454 N.J. Super. at 158 (quoting Engle v.
Siegel,
74 N.J. 287, 291 (1977)), it "'may, on the basis of the entire will,
competent extrinsic evidence and common human impulses strive reasonably to
ascertain and carry out what the testator probably intended . . . .'" Id. at 159
(quoting Burke, 48 N.J. at 64).
Thus, "[t]he doctrine permits the reformation of a will in light of a
testator's probable intent by 'searching out the probable meaning intended by the
words and phrases in the will[,]'" 7 Flood, 417 N.J. Super. at 381 (quoting Engle,
74 N.J. at 291), and offering "extrinsic evidence . . . not only to show an
ambiguity in a will but also, if an ambiguity exists, 'to shed light on the testator's
actual intent.'" Ibid. (quoting Wilson v. Flowers,
58 N.J. 250, 263 (1971)).
Indeed, as codified by statute,
[t]he intention of a testator as expressed in his [or her]
will controls the legal effect of his [or her] dispositions,
and the rules of construction expressed in N.J.S.[A.]
3B:3-34 through N.J.S.[A.] 3B:3-48 shall apply unless
the probable intention of the testator, as indicated by
the will and relevant circumstances, is contrary.
[N.J.S.A. 3B:3-33.1(a).]
7
While "[t]he preponderance-of-the-evidence standard of proof applies to
interpretation[,] . . . the more rigorous clear-and-convincing standard of proof
applies to reformation." Nelson, 454 N.J. Super. at 160.
A-2847-16T4
33
Here, paragraph B of article three of Antoinette's will bequeathed "[t]he
sum of Forty Thousand . . . dollars to each of my following nieces and nephews,
Joanne Cannici, Stephen Cannici, Felicia Alfieri Feldman, Linda Alfieri
Willman, Brenda Ann Morton, [a]nd Barbara Ann Morton Stella, per stirpes and
not per capita." (Emphasis added). The unambiguous language of the will
expressly excluded Charles by limiting the bequest to specified nieces and
nephews. Charles asserts that McHugh's destruction of the scrivener's notes in
2011 creates an inference in his favor, and that a fact finder could have found
that Antoinette did not intend to treat him differently from the other nieces and
nephews. However, these "[b]are conclusory assertions, without factual support
in the record," Horizon, 425 N.J. Super. at 32 (citing Brae Asset Fund, L.P. v.
Newman,
327 N.J. Super. 129, 134 (App. Div. 1999)), and "unsubstantiated inferences and feelings[,]" Oakley v. Wianecki,345 N.J. Super. 194
, 201 (App.
Div. 2001), are insufficient to defeat summary judgment. Thus, we agree with
the court that Charles was not bequeathed $40,000 under the unambiguous terms
of Antoinette's will, and we discern no basis to reverse the grant of summary
judgment to her Estate.8 To rule otherwise would "derive a missing testamentary
8
Charles challenges the court's reliance on Ost, which held that a court must
assume it was the testator's intent to omit a nephew from a bequest where, as
A-2847-16T4
34
provision out of whole cloth[.]" Nelson, 454 N.J. Super. at 160 (quoting Engle,
74 N.J. at 291).
B.
Turning to the court's denial of Charles' request for an award of counsel
fees, parties seeking counsel fees bear the burden of proving they are entitled to
an award and that the fees sought are reasonable. Green v. Morgan Props.,
215
N.J. 431, 455 (2013). "A prevailing party can recover counsel fees if expressly allowed by statute, court rule, or contract." Empower Our Neighborhoods v. Guadagno,453 N.J. Super. 565
, 579 (App. Div. 2018).
Rule 4:42-9(a)(2), pertaining to "a fund in court[,]" permits "[a] fiduciary"
to "make payments . . . for legal services rendered out of a fund entrusted to the
fiduciary for administration, subject to approval . . . by the court upon settlement
of the account." "'Fund in court' has been defined as 'where it is in the hands of
a fiduciary who is a party before the court and when it is within the court's
jurisdictional authority to deal with it.'" In re Prob. of Alleged Will of
Landsman,
319 N.J. Super. 252, 272 (App. Div. 1999) (quoting In re Estate of
here, other nieces and nephews were specifically named. 120 N.J. Eq. at 48-49.
Charles also questions the court's reliance on Rule 4:85-1, permitting an
aggrieved person to file a complaint within specified time frames when "a will
has been probated . . . ." However, there is no indication in the record that the
court relied on either.
A-2847-16T4
35
Thornton,
169 N.J. Super. 360, 369 (App. Div. 1979)). "In order for an attorney to be entitled to compensation for his services from a 'fund in court' he must have aided directly in creating, preserving or protecting the fund. He is not entitled to such an award if his client sues merely for his own interest or benefit." Shilowitz v. Shilowitz,115 N.J. Super. 165
, 188 (Ch. Div. 1971), modified,119 N.J. Super. 311
(App. Div. 1972) (citation omitted).
Additionally, Rule 4:42-9(a)(3) specifically permits the award of counsel
fees in probate actions. "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." Ibid. (emphasis added). In accordance with this rule, courts
may allow counsel fees to both the proponent and contestant in a will dispute
"'[e]xcept in a weak or meretricious case.'" In re Prob. of Will & Codicil of
Macool,
416 N.J. Super. 298, 313 (App. Div. 2010) (alteration in original) (quoting In re Reisdorf,80 N.J. 319
, 326 (1979)).
However, whether to award counsel fees and "[t]he extent of such awards
rests within the sound discretion of the trial [court,]" Empower Our
Neighborhoods, 453 N.J. Super. at 579, and "fee determinations by trial courts
will be disturbed only on the rarest of occasions, and then only because of a
A-2847-16T4
36
clear abuse of discretion." Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer,141 N.J. 292
, 317 (1995)). An abuse of discretion in the award of counsel fees may be demonstrated "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone, 382 N.J. Super. at 193 (citing Flagg v. Essex Cty. Prosecutor,171 N.J. 561
, 571 (2002)).
Here, we discern no abuse of discretion in the court's denial of Charles'
request for counsel fees in light of the fact that Charles' pursuit of the $40,000
bequest was unsuccessful, and the Estate conceded Charles was a beneficiary
under the anti-lapse statute, obviating the need for litigation. Given the
"considerable latitude" afforded courts "in resolving fee applications," Grow
Co., Inc. v. Chokshi,
424 N.J. Super. 357, 367 (App. Div. 2012), we see no
reason to intervene.
IV.
We now turn our attention to Matthew's contention that the court erred by
denying his application to intervene as of right, under Rule 4:33-1, or
permissively, pursuant to Rule 4:33-2. To satisfy Rule 4:33-1's requirements to
intervene as of right, a moving party must:
A-2847-16T4
37
(1) claim "an interest relating to the property or
transaction which is the subject of the transaction," (2)
show [that the movant] is "so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that interest," (3)
demonstrate that the "[movant's] interest" is not
"adequately represented by existing parties," and (4)
make a "timely" application to intervene.
[Am. Civil Liberties Union of N.J., Inc. v. Cty. of
Hudson,
352 N.J. Super. 44, 67 (App. Div. 2002)
(alterations in original) (quoting Meehan v. K.D.
Partners, L.P.,
317 N.J. Super. 563, 568 (App. Div.
1998)).]
"As the rule is not discretionary, a court must approve an application for
intervention as of right if the four criteria are satisfied." Meehan, 317 N.J.
Super. at 568.
Alternatively, under Rule 4:33-2, "[u]pon timely application[,] anyone
may be permitted to intervene in an action if the claim or defense and the main
action have a question of law or fact in common." "In exercising its discretion[,]
the court shall consider whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties." Ibid. Because the decision
"vests considerable discretion in the trial court[,]" Evesham Twp. Zoning Bd. of
Adjustment v. Evesham Twp. Council,
86 N.J. 295, 299 (1981), we review the
trial court's adjudication of a permissive intervention motion under an abuse of
A-2847-16T4
38
discretion standard. See City of Asbury Park v. Asbury Park Towers, 388 N.J.
Super. 1, 12 (App. Div. 2006).
Here, the court denied Matthew's motion to intervene because it was
untimely. The litigation regarding the brokerage account had been ongoing for
over three years, and Matthew failed to move to intervene during that time
period. It was only when the Estates moved for the court to approve the final
accounting that Matthew filed a cross-motion to intervene. We have instructed
that "[o]n the issue of timeliness," the court must "consider the purpose of the
intervention motion in relation to the stage in the action when the motion was
made." Chesterbrooke Ltd. P'ship v. Planning Bd. of Tp. of Chester, 237 N.J.
Super. 118, 125 (App. Div. 1998). "For example, if intervention is sought only
for the limited purpose of taking an appeal, the only 'prejudice to those already
parties in the case' from granting intervention is the inherent 'delay' necessarily
involved in opposing the intervenor's appeal." Ibid. (quoting United States v.
Am. Tel. & Tel. Co.,
642 F.2d 1285, 1294-95 (D.C. Cir. 1980)).
Here, the court acknowledged that given the Estate's challenge to
"Barbara's standing to pursue [an] appeal[,]" Matthew sought to intervene "in
order to preserve the right to appeal." However, there had been no determination
that Barbara had no standing to pursue an appeal, and the court rejected the
A-2847-16T4
39
Estate's contention that the court had previously made that determination.
According to the court, there was "no order . . . ever entered to that effect," and
such "a determination" would have had to be "reduced to an order" to be binding.
Thus, the court concluded there was "no reason for a change" in "the status quo"
"at this point" by permitting Matthew's intervention. We agree with the court's
determination.
More problematic, however, is the dearth of evidence in the record
demonstrating that Matthew complied with the procedural requirements of Rule
4:33-3, which requires "[a] person desiring to intervene" to "serve on all parties
a motion to intervene stating the grounds therefor and accompanied by a
pleading setting forth the claim or defense for which intervention is sought along
with a Case Information Statement pursuant to [Rule] 4:5-1(b)(1)." Thus, we
are also convinced that Matthew's failure to meet the procedural requirements
of Rule 4:33-3 was fatal to his application.
V.
Finally, we address Barbara's claims in turn.
A.
Turning first to her challenge of the award of counsel fees, Barbara argues
the court "abuse[d] its discretion" by "not reducing the amount of fees sought
A-2847-16T4
40
by the estates' counsel." Barbara posits "[t]he majority of the fees incurred in
Antoinette's estate were as a direct result of the co-executors' change in position
with respect to the disposition of the brokerage account and the time and effort
to prevent the disclosure of relevant information." Additionally, Barbara asserts
that "[t]he fees associated with the filing of the inheritance tax return in
Antoinette's estate should be disallowed" because "[t]he return had to be
amended" as a result of errors, and the co-executors "failed to disclaim assets
from the Victor estate, which would have resulted in an overall tax savings to
the estates." She also contends the certifications submitted by counsel contained
incomplete, duplicative, and erroneous entries.
While Rule 4:42-9(a)(3) permits the award of counsel fees "out of the
estate" in "a probate action," Rule 4:42-9(b) specifies that "all applications for
the allowance of fees shall be supported by an affidavit of services addressing
the factors enumerated by RPC 1.5(a)[,]" and "shall also include a recitation of
other factors pertinent in the evaluation of the services rendered, the amount of
the allowance applied for, and an itemization of disbursements for which
reimbursement is sought." RPC 1.5(a) details the factors a court is required to
A-2847-16T4
41
consider in assessing the reasonableness of attorney's fees. 9 After analyzing the
relevant factors, a court must then "state its reasons on the record for awarding
a particular fee . . . ." City of Englewood v. Exxon Mobile Corp., 406 N.J.
Super. 110, 125 (App. Div. 2009) (quoting Furst v. Einstein Moomjy, Inc.,
182
N.J. 1, 22 (2004)).
9
The factors to be considered include the following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by
the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the
lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent.
[RPC 1.5(a).]
A-2847-16T4
42
Here, McHugh and Cathyanne Pisciotta, as counsel for the Estates,
submitted separate certifications of services in compliance with Rule 4:42-9(b)'s
requirements. The certifications delineated the relevant RPC 1.5(a) factors,
including the attorneys' experience, hourly rates, time expended, and work
performed. After analyzing the pertinent factors, the court determined the fees
were reasonable. Given the length, complexity, and litigious history of the case,
we discern no abuse of discretion in the court's determination, and no reason to
disturb the award.
B.
Next, we address Barbara's contention that the court erred when it
dismissed her complaint for damages arising from the sale of the East Hanover
property. Because this issue was resolved by summary judgment, we review the
court's decision de novo. Templo Fuente, 224 N.J. at 199. Barbara argues the
"court erred in finding that [her] claims were moot" because the house had sold
by the time an action was filed and she had received one-sixth of the sale
proceeds. According to Barbara, she was entitled to "legal damages for the lack
of access during the co-executors' wrongful sole possession" of the property
calculated by "the imputed rental value for use and occupancy." Additionally,
she asserts she was entitled to "the difference between the lower sales price and
A-2847-16T4
43
the appraised date of death value of the property," or, more specifically, $5,000,
representing "one-sixth" of "$30,000." Barbara also contends the court erred by
finding "no wrongdoing by the agents of the estates[,]" and by "failing to hold
the co-executors accountable for usurping a co-owner's rights[,]" and "using the
property to store their own personalty."
The court analyzed Barbara's claim as a legally cognizable claim for
ouster. An ouster occurs "where one cotenant . . . remains in possession of a
one-family house which is not susceptible of joint occupancy, and refuses to
accede to plaintiff's demands for access to the property[.]" Newman v. Chase,
70 N.J. 254, 267 (1976). Where "'an ouster or exclusion'" occurs, "the excluded cotenant may recover the reasonable rental value of the portion of the property so occupied." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi,398 N.J. Super. 299
, 312 (App. Div. 2008) (quoting Lohmann v. Lohmann,50 N.J. Super. 37
,
68 (App. Div. 1958)). When an ouster occurs, "'but the ousted cotenant receives
an accounting based on the value of the use and occupation by the cotenant in
possession, equity requires that appropriate payments made by the cotenant in
possession be credited in calculating what is due [to] the cotenant out of
possession.'" Ibid. (quoting Newman, 70 N.J. at 267-68).
A-2847-16T4
44
Here, the parties were not co-tenants. Thus, we question the applicability
of an ouster claim. On the other hand, under N.J.S.A. 2A:35-1, "[a]ny person
claiming the right of possession of real property in the possession of another, or
claiming title to such real property, shall be entitled to have his [or her] rights
determined in an action in the Superior Court." "When a landowner establishes
his or her entitlement to possession of or title to the realty," then a landowner-
plaintiff "'shall be entitled to recover from the defendant any and all incidental
damages, including mesne profits, and the full value of the use and occupation
of the premises for the time, not exceeding 6 years, before the commencement
of the action, during which the defendant was in possession thereof.'" J & M
Land Co. v. First Union Nat'l Bank ex rel. Meyer,
166 N.J. 493, 506 (2001)
(quoting N.J.S.A. 2A:35-2).
Similarly, under N.J.S.A. 2A:39-5,
A person taking possession of real property, without the
consent of the owner or without color of title, and
willfully and without force holding or detaining the
same after demand and written notice given for the
delivery of the possession thereof, by the owner or
person entitled to possession or right to possession shall
be guilty of an unlawful detainer.
A successful plaintiff in an unlawful detainer action "shall be entitled to
possession of the real property[,]" if appropriate, and "shall recover all damages
A-2847-16T4
45
proximately caused by the unlawful entry and detainer including court costs and
reasonable attorney’s fees." N.J.S.A. 2A:39-8.
Here, upon Victor's death, Barbara became a one-sixth owner of the East
Hanover property because she held a remainder interest in his life estate.
Barbara filed a timely complaint against the Victor Estate, seeking damages
incurred as a result of the co-executors' possession of the East Hanover property
and denial of her claim for access to the property until over one year after
Victor's death. The co-executors claimed they secured the premises to protect
Victor's and Antoinette's personal belongings from Barbara's pilfering.
Nonetheless, Barbara was permitted "to assert a claim for whatever damages the
facts may lawfully warrant, unrestrained by common law pleading or
nomenclature." Marder v. Realty Constr. Co.,
43 N.J. 508, 511 (1964). To that
end, Barbara sought $5,000, representing one-sixth of the difference between
the sale price and the value of the property on the date of Victor's death, and an
unspecified amount, representing the value of the co-executors' use of the
premises. As the court found, however, the former was unsupported by "an
expert opinion," and the latter was speculative at best, particularly given the co-
executors' "fiduciary duty to protect estate assets." Accordingly, we agree with
the court's decision to grant summary judgment and dismiss Barbara's claim
A-2847-16T4
46
based on her failure to support her claim for damages, albeit predicated upon a
different cause of action. See Isko v. Planning Bd. of Livingston,
51 N.J. 162,
175 (1968) ("[I]f the order of [a trial court] is valid, the fact that it was predicated
upon an incorrect basis will not stand in the way of its affirmance." ).
C.
Next, we turn to Barbara's contention that the trial court erred in denying
her cross-motion for declaratory relief, in order to declare that the class of
grandnieces and grandnephews are beneficiaries of the brokerage account.
Because Barbara failed to meet certain procedural requirements, her application
was properly rejected.
Declaratory relief pursuant to the Declaratory Judgment Act (DJA),
N.J.S.A. 2A:16-50 to -62, is an equitable remedy "to provide a means by which
rights and obligations may be resolved in a case . . . ." State v. Eatontown
Borough,
366 N.J. Super. 626, 636-37 (App. Div. 2004). "Generally, it rests in
the sound discretion of the trial court whether declaratory relief under the Act
should be granted." Id. at 637. Thus, we review the trial court's denial under an
abuse of discretion standard. Ibid.
The DJA specifies that:
A person interested as or through an executor, . . .
trustee, . . . or other fiduciary, . . . devisee, legatee, [or]
A-2847-16T4
47
heir . . . in the administration of a trust or the estate of
a decedent . . . may have a declaration of rights or legal
relations in respect thereto, to:
a. Ascertain any class of . . . devisees, legatees, heirs
. . . or others; or
b. Direct the executor . . . or other fiduciary to do or
abstain from doing any particular act in his fiduciary
capacity; or
c. Determine any question arising in the administration
of the estate, [or] trust . . . including the construction of
wills and other writings.
[N.J.S.A. 2A:16-55.]
Additionally, N.J.S.A. 2A:16-53 provides that "[a] person interested under a
deed, [or] will . . . may have determined any question of construction or validity
arising under the instrument . . . and obtain a declaration of rights, status or other
legal relations thereunder."
It is undisputed that in addition to being a legatee of a $40,000 bequest,
Barbara is a residuary beneficiary under Antoinette's will since, like her brother
Charles, she would take in place of her mother under the anti-lapse statute,
N.J.S.A. 3B:3-35. Barbara is also the parent of Matthew and Christina Stella,
who are the grandchildren of Anna Marie Alfieri Morton and the grandnephew
and grandniece, respectively, of Victor and Antoinette. Because Christina is
under the age of twenty-five, Barbara would be the trustee of any assets passing
A-2847-16T4
48
to her daughter under Antoinette's will. Thus, Barbara qualifies as an interested
person entitled to bring a declaratory judgment action to obtain a declaration of
rights and construction of the will.
However, "[w]hen declaratory relief is sought, all persons having or
claiming any interest which would be affected by the declaration shall be made
parties to the proceeding." Gotlib v. Gotlib,
399 N.J. Super. 295, 313 (App. Div. 2008) (quoting N.J.S.A. 2A:16-56). Indeed, a court "cannot adjudicate the rights of parties who are not before the court[,]" ibid., and "[a] non-party 'remains unaffected by any such judgment.'" Id. at 314 (quoting Tal v. Franklin Mut. Ins. Co.,172 N.J. Super. 112
, 116 (App. Div. 1980)). See N.J.S.A. 2A:16-57. Here,
Barbara sought declaratory relief in a cross-motion, rather than a complaint, and
failed to join all interested parties, including other residuary beneficiaries,
grandnieces and grandnephews, as required under N.J.S.A. 2A:16-56. While the
former is not fatal to her application, the latter is.
The stated purpose of the DJA "is to settle and afford relief from
uncertainty and insecurity with respect to rights, status and other legal
relations." N.J.S.A. 2A:16-51. That purpose cannot be achieved unless all
parties having an interest in the subject matter are joined. Indeed, "[t]he court
may refuse to render or enter a declaratory judgment, when, if rendered or
A-2847-16T4
49
entered, it would not terminate the uncertainty or controversy giving rise to the
proceeding." N.J.S.A. 2A:16-61. Therefore, we discern no abuse of discretion
in the court's dismissal of Barbara's claim for declaratory relief. See Garnick v.
Serewitch,
39 N.J. Super. 486, 500 (Ch. Div. 1956) (holding that joining
interested parties necessary to the litigation is a prerequisite to bringing a
declaratory judgment action).
D.
Finally, we address Barbara's contention that the court erred in granting
the Estate of Antoinette summary judgment on the ademption issue. Having
considered the arguments and applicable law, we are satisfied that the bequest
did not adeem as a matter of law, and the court erred in ruling otherwise.
In New Jersey,
[t]he test of ademption of a specific legacy . . . is
whether the subject is "lost, destroyed, or subsequently
disposed of by testator, or so altered in form, by
testator's subsequent acts, as to indicate a change of
testamentary intent on his [or her] part. Conversely, if
the subject, although somewhat changed in form, be not
sufficiently changed to indicate change of testamentary
intent, there is no ademption."
[Arenofsky v. Arenofsky,
29 N.J. Super. 209, 213 (App.
Div. 1954) (quoting Chase Nat'l Bank v. Deichmiller,
107 N.J. Eq. 379, 382 (Ch. 1930)).]
A-2847-16T4
50
In Arenofsky, we held that the testator's bequest of a partnership interest
did not adeem even though the partnership was converted into a corporation
prior to the testator's death. Id. at 213-14. There, we reversed the trial court's
determination "that the effect of the creation of the corporation and the transfer
to it of the decedent's equal share of the partnership and the receipt in return
therefor of shares of stock was to adeem the bequest of the partnership interest."
Id. at 213. We found "the testator's interest in the corporation remained
precisely the same as it had been in the partnership[,]" "[t]he alteration was in
form only[,]" ibid., and there was "no substantial evidence in the surrounding
circumstances . . . which demonstrate[d] an intention on [the testator's] part to
consider his interest in the corporation as different from that in the partnership. "
Id. at 213-14. We determined "[h]is share was in the business, and the form it
took on under the facts presented" was "immaterial." Id. at 214.
Likewise, in Hall, we reversed the trial court's determination that "a
specific bequest by will of certain bank accounts . . . adeemed by the transfer of
the moneys from four banks named in the will, during the testator's lifetime, to
another bank and a savings and loan association." 60 N.J. Super. at 598. There,
the testator transferred the funds because he moved from Rochester, New York,
to Maplewood, New Jersey, and began using local New Jersey banks. Id. at 599-
A-2847-16T4
51
600. The total sum of money in the four New York bank accounts was directly
traceable to the sum of money transferred into the two New Jersey accounts. Id.
at 600. We posited that
[t]he precise question . . . [was] whether the intent of
the testator was to so delimit and confine the subject
matter of the specific bequests . . . that if the money
therein should be transferred before his death to other
depositaries purely for his own custodial convenience,
as was obviously here the case, the bequest was
therefore necessarily revoked because the money was
no longer in "the form of bank accounts" in the specific
banks named in the will.
[Id. at 600-01.]
We noted there was "nothing to indicate that the estate of the testator was
substantially different in size or content when the will was drawn from when he
died." Id. at 602. Focusing on the testator's intent, we explained:
The testator intended to bequeath, not the particular
funds in the Rochester banks, but something having a
value roughly equal, or likely to be substantially equal
at his death, to that amount of money. The location
named in the will was the location of the funds when
the will was made, and this location identified the
moneys, but this was not a vital term of the bequest.
The change in place of deposit did not affect the
substance of the gift.
[Id. at 603.]
A-2847-16T4
52
See also White v. White,
105 N.J. Super. 184, 187 (Ch. Div. 1969) (finding "probable intent of the testator is the determining factor" in assessing ademption); Wyckoff v. YWCA,37 N.J. Super. 274
, 278 (Ch. Div. 1955) ("The
intention of the testator . . . is involved only when his actions with reference to
the subject matter of the bequest give rise to the inquiry as to whether there has
been an ademption.").
Here, the court framed the issue as whether Victor's transfer of the assets
in his Smith Barney account to Oppenheimer amounted to an ademption of those
funds. However, because Victor's bequest to Antoinette was a general residuary
bequest, rather than a specific bequest, it was not subject to ademption. "A
general legacy is defined as a bequest of personal property payable out of the
general assets of the testator's estate rather than from specific property included
therein." Busch v. Plews,
12 N.J. 352, 356 (1953). On the other hand, "[a] specific legacy is defined as a bequest of personal property in specie and not payable from other assets of the estate." Ibid. (citing Camden Tr. Co. v. Cramer,136 N.J. Eq. 261
, 270 (Ch. 1945)). Only "[s]pecific legacies are subject to
ademption; and it is the settled rule of construction that a legacy will not be
deemed specific unless the testator has explicitly indicated such to have been
his intention." Cramer, 136 N.J. Eq. at 270; see also Busch, 12 N.J. at 356.
A-2847-16T4
53
Because specific legacies "are subject to ademption with consequent frustration
of the testator's donative purpose, courts lean against construing legacies as
specific." Busch, 12 N.J. at 356 (citing Cramer, 136 N.J. Eq. at 270).
Here, because Victor predeceased Antoinette, the governing provision of
Victor's will reads as follows:
I give, devise[,] and bequeath to my beloved sister,
ANTOINETTE ELEANOR ALFIERI, absolutely and
forever, all of the remainder of my property, real,
personal, and mixed, of whatsoever kind and
wheresoever situated, which I may own, possess[,] or
be entitled to at the time of my death, or over which I
may have any power of appointment or disposition . . . .
The language clearly shows that the bequest to Antoinette was a general rather
than a specific legacy. The will made no mention of specific assets or listed
specific property Antoinette would inherit. "If the subject-matter is not
sufficiently individuated, the legacy is treated as general . . . ." Cramer, 136
N.J. Eq. at 270. As a result, contrary to the court's conclusion, Antoinette did,
in fact, inherit the brokerage account and was free to dispose of the funds as she
wished.
Because paragraph A of the third article of Antoinette's will provided a
bequest "in equal shares" to specified grandnephews and grandnieces of "[t]he
balance of the pre-death shareholdings" of Victor's "brokerage account at Smith
A-2847-16T4
54
Barney," the issue then becomes whether this specific bequest in Antoinette's
will adeemed. Although there was evidence from McHugh's deposition
testimony of Victor's intention to disinherit his grandnieces and grandnephews,
in interpreting Antoinette's will, the analysis focuses on Antoinette's "probable
intent" after inheriting Victor's brokerage account. In re Estate of Payne,
186
N.J. 324, 335 (2006). In that regard, "in determining the testator's subjective
intent, 'courts will give primary emphasis to [her] dominant plan and purpose as
they appear from the entirety of [her] will when read and considered in the light
of the surrounding facts and circumstances." Ibid. (quoting Robert, 36 N.J. at
564-65).
When Victor moved his assets from Smith Barney to Oppenheimer,
"although [the assets] somewhat changed in form," those assets were not "lost,
destroyed, or subsequently disposed of by" Antoinette. Arenofsky, 29 N.J.
Super. at 213. Indeed, the assets in the Oppenheimer account, consisting of
stocks of various corporations, were virtually identical to the assets transferred
from the Smith Barney account. Neither is there any evidence that those assets
were "so altered in form" by Antoinette's subsequent acts "as to indicate a
change of testamentary intent on [her] part." Ibid. Further, in light of the
surrounding facts and circumstances, there is no evidence demonstrating a plan
A-2847-16T4
55
or purpose from the entirety of Antoinette's will that she intended to disinherit
her grandnieces and grandnephews. Pertinent to that determination, in July
2011, when Antoinette executed a codicil specifically excluding Courtney from
her will, there was no mention of the brokerage account or of disinheriting any
other grandniece or grandnephew. In these circumstances, Victor's words and
actions prior to Antoinette's acquisition of his assets are of no consequence in
ascertaining Antoinette's testamentary intent.
In sum, because the Smith Barney brokerage account did not adeem, and
Antoinette bequeathed those assets, valued at over $600,000 at the time of her
death, to specified grandnieces and grandnephews, the court erred as a matter of
law in granting the Estate of Antoinette summary judgment. Based on our
decision, we need not consider Barbara's remaining arguments that the court
erred in denying reconsideration and declining to judicially and equitably estop
the Estate from arguing ademption. Accordingly, the court's order granting the
Estate summary judgment on the ademption issue is reversed. We affirm in all
other respects. To the extent we have not specifically addressed a particular
argument, it is because either our disposition makes it unnecessary or the
argument was without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
A-2847-16T4
56
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-2847-16T4
57
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