NJ Probate, Wills and Estate Administration- Statutes and information

2012 update Wills and Estate Planning- Free Seminar

2012-01-19T09:29:00.001-08:00

2012 update Wills and Estate Planning

Seminar materials

Compiled by Kenneth Vercammen

1. Federal Estate Tax increased to Estates over $5,000,000, but New Jersey taxes estates over $675,000.

2. Non-formal writings could be Wills under the New Probate Law

3. The recommendation for Self- Proving Wills

4. Revised statute requires Palimony agreements to be in writing.

5. Recent case can void Will signed under suspicious circumstances

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person.

1. Federal Estate Tax increased to Estates over $5,120,000, but New Jersey taxes estates over $675,000.

The Federal estate tax was reinstated for 2011 and 2012. The exemption amount will be $5 million per individual in 2011 and was indexed to inflation in 2012 to $5,120,000,. Estates of people who died in 2010 can choose to follow either the rules in effect for 2010 or 2011.

The Act sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year.

New Jersey has an Estate Tax on amounts over $675,000. So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.

So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but

the Estimated State Estate Tax: $33,200.00

For an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000

2. Non formal writings could be Wills under the Revised Probate Law, so make sure you have a Formal Will drafted without notations written on it.

SENATE Law No. 708 made a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.

The adoption of portions of the Uniform Probate Code attempted to bring greater uniformity to the rules governing testamentary and non-testamentary transfers to make most state laws similar.

The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.

To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.

Be careful; have a Will done properly by an experienced attorney.

3. We recommend Self- Proving Wills

An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.

The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.” In such a Will, the person for whom the Will is made must sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.

When done properly, the executor does not have to locate any witnesses. This usually saves time and money. If your Will is not “self-proving” or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows 1978 laws.

Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if in a 2^nd marriage

The elective share provisions of the present Code has still not been changed yet. Currently, a spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a caveat or lawsuit in Superior Court. We suggest a formal prenuptial agreement in 2^nd marriage situations.

A Testator now means both male and female individuals, removing the term “Testatrix”. Will forms used by attorneys will need to be revised.

The law provides a statute of limitations with respect to creditor claims against a decedent's estate. There is no longer a need to publish a Notice Limiting Creditors.

4. Revised statute requires Palimony agreements to be in writing.

This law is intended to overturn recent "palimony" decisions by New Jersey courts by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the law provides that a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed. The law provides that no such written promise is binding unless it was made with the independent advice of counsel for both parties.

This law eliminates the holdings of two cases, Devaney v. L’Esperance, 195 N.J. 247 (2008) and In re Estate of Roccamonte, 174 N.J. 381 (2002), the New Jersey Supreme Court upheld palimony agreements between two unmarried cohabitants. In the Devaney case the court held that “cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In the Roccamonte case, the court held that an implied promise of support for life is enforceable against the promisor’s (cohabitant’s) estate.

The new palimony law almost totally eliminates palimony in NJ.

5. Supreme Court held Will could be void if signed under suspicious circumstances

When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption.

If there is undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)

6 Gifts permitted without Federal Estate & Gift tax was increased to $13,000 per person. The amount permitted for Medicaid transfers is zero.

7. NJ Inheritance tax

The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised in September, 2011. Throw out old forms. Even if no inheritance tax due, a Tax Waiver on a house must be obtained and filed if the house was not co-owned by the spouse.

8. Power of Attorney

Do not use a form purchased online, unless it contains reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

9. Federal Health Privacy Law (HIPAA)

A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.

The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.

Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.

Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.htm

After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.

More information on Wills and Probate at

http://www.njlaws.com/more_articles_on____.asp?Category=Wills_and_Probate

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

More information at www.CentralJerseyElderLaw.com

Attorney fees reversed to challenger to Will on Undue Influence IN THE MATTER OF THE ESTATE OF EDWARD A. CANTOR,

2011-11-08T18:54:00.000-08:00

Attorney fees reversed to challenger to Will on Undue Influence

IN THE MATTER OF THE ESTATE OF

EDWARD A. CANTOR,

Deceased.

________________________________

Argued March 9, 2011 - Decided

Before Judges Cuff, Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County, Docket No. P-547-02.

Alan M. Lebensfeld argued the cause for appellant/cross-respondent Michael M. Cantor, as Executor of the Estate of Edward A. Cantor, deceased (Lebensfeld, Borker, Sussman & Sharon, L.L.P., attorneys; Mr. Lebensfeld and Lawrence J. Sharon, on the brief).

Richard D. Catenacci argued the cause for respondent/cross-appellant Cheryl S. Cantor (Connell Foley, L.L.P., attorneys; Mr. Catenacci, of counsel and on the brief; Catherine G. Bryan and Joanna S. Rich, on the briefs).

PER CURIAM

Plaintiff, Cheryl Cantor (Cheryl),

filed a complaint in this probate matter in which she alleged that family members and business associates of her father frustrated her reconciliation with her father and exercised undue influence over him to disinherit her in favor of others, primarily her brother. Following a thirty-five-day bench trial, the court found no undue influence, but pursuant to Rule 4:42-9(a)(3), awarded Cheryl $399,658 in counsel fees and costs.

The Estate of Edward A. Cantor ("Estate") appeals from that portion of the March 31, 2009 order awarding those fees and denying its motion for reconsideration of the court's January 23, 2009 order denying its motion to impose frivolous litigation sanctions. Cheryl cross-appeals from that portion of the March 31, 2009 order dismissing her complaint after the court found no undue influence in the execution of Edward's last will and testament of April 6, 2001. We affirm the dismissal of plaintiff's complaint and the denial of the Estate's application for sanctions. We reverse the award of counsel fees to Cheryl.

The evidence presented at trial was as follows. Edward died testate on February 19, 2002. The estimated value of his estate was approximately $90 million, wealth amassed primarily from his ownership and management of commercial and industrial properties in northern New Jersey through twenty-seven entities. He was survived by his third wife, Jane, and two children, Michael and Cheryl. The will left Edward's residuary estate to Michael, expressly disinheriting Cheryl, from whom Edward was estranged for fifteen years before resuming contact with Cheryl sometime in 2000.

The background surrounding the estrangement between Edward and Cheryl stems from a dispute that arose in the early eighties over five properties. The properties were deeded to Cheryl by Edward in exchange for Cheryl's fifty percent interest in real estate known as the Malestrom property. Although Edward conveyed title to the five properties to Cheryl, he continued to manage them until Cheryl decided that she wanted to terminate the management arrangement. In response, Edward, acting as attorney-in-fact, conveyed title to three of the properties to himself. Cheryl brought a declaratory judgment action against her father, seeking a declaration of ownership and management rights over all five properties. Before Cheryl filed her complaint, Michael tried to dissuade her from pursuing it, warning his sister that their father would disinherit her. Cheryl told Michael that she intended to proceed with the litigation despite knowing that she would make her brother "a rich man" in doing so.

In response to Cheryl instituting the lawsuit referred to as the Five Properties litigation, Edward took away the car he leased for her, cancelled the health and automobile insurance he paid on her behalf, and foreclosed on a mortgage he held on the property in which she lived. Cheryl prevailed in the litigation. The court ordered Edward to pay Cheryl $1.3 million in compensatory damages and $200,000 in punitive damages. Cheryl's husband, Tom Trabocco, with whom Edward had previously engaged in extensive business enterprises until serious hostilities arose between the two men, took the judgment check Edward paid, enlarged it, and had it displayed on a billboard near one of the five properties.

As a result of the Five Properties litigation, Edward ceased speaking to Cheryl, as did Michael. Edward considered Cheryl to be dead and, according to Michael, had a rabbi give a "Kaddish," a prayer for the dead, for Cheryl.

Cheryl's adversarial relationship with Edward did not end with the conclusion of the Five Properties litigation. She sought to recover civil remedies against Edward in accordance with New Jersey's RICO

statute. In a court proceeding, she referred to her father as a thief. Cheryl and Tom arranged, through a deputy attorney general who was a friend of Tom's, to have Edward arrested on criminal RICO charges at his home at 5:00 a.m. As Edward was led out in handcuffs, Cheryl and Tom sat in a car across the street and watched, having been tipped off that the arrest would take place. They then drove to Edward's office and watched as the police searched it. Cheryl did not deny any of these incidents, but testified that Tom, from whom she was eventually divorced, "had a nine millimeter pulled to [her] head" and that she "wouldn't do anything against what he said[.]"

Edward accused Cheryl of trespassing on his Florida estate and got a restraining order against her. He also accused her of harassing his employees and business associates and slandering him by putting letters in the mailboxes of his Florida neighbors. Edward also believed that Cheryl cancelled a flight he had scheduled from Los Angeles to New York as he was heading home from Australia, leaving him stranded.

Edward asked his third wife, Jane, whom he married in 1992, to help him compile a list of all the things Cheryl had done over the years to hurt him, and he kept the list either under his desk blotter or in his wallet until he eventually asked Jane to hold onto it. She later produced the list at her deposition. Edward showed the list to his longtime personal secretary, Charlene Jacobs. Charlene's husband, Charles Jacobs, who was Edward's accountant and designated as a co-executor of his estate, testified that Edward read the list at a dinner not long before his death. Charles stated that "[i]t was painful" when the list was read, and following the reading, Edward announced that he would not change his will, as too many things had happened.

Prior to the Five Properties litigation, Edward had executed a will, leaving his residuary estate in trust for Cheryl and Michael. In April 1991, however, Edward executed a will, leaving nearly the entire estate to Michael and making no mention of Cheryl. One year earlier, Edward had executed a notarized directive with a message to be read at his funeral, which ordered Cheryl, Trabocco, and Edward's brother and sister-in-law, Saul and Mabel Cantor, to leave the funeral or be removed by the police, "[s]ince you saw fit to sever your family connections with me during my lifetime."

Several months after executing the April 1991 will, Edward executed another will in which he gifted Cheryl ten dollars, stating that he "intentionally [made] no other provision for her[.]" In September 1997, Edward executed a new will in which he left his residuary estate to Michael and "intentionally [made] no provision for [his] daughter, Cheryl[.]"

Cheryl and Trabocco separated in 1991, and in 1998 Trabocco filed for divorce. As part of the dissolution action, he sought equitable distribution of the five properties, which Cheryl resisted. Cheryl was living in Italy at the time and, in early 1999, started to make overtures to her father in an effort to reconcile with him. She sent letters to him apologizing for her previous actions and attributing her behavior to "passivity and intimidation" by Trabocco. Edward did not respond to the letters but forwarded them to Michael, who likewise did not respond to Cheryl.

On June 16, 1999, Edward executed another will. The will was prepared by attorney Alan Adler, who had begun the planning of the will in March 1999, after he had been contacted by Charles, who worked in the same building as Adler. Charles looked at the will and discussed the tax consequences with Adler at Edward's behest. According to Adler, Charles was Edward's "point man" and was aware of all aspects of the 1999 will through meetings between the three of them. Michael was the sole residuary beneficiary of the June 1999 will. The will also gave Jane the option of accepting the provisions offered under her prenuptial agreement or the will, whichever were more favorable. The will stated, "I intentionally make no provision in this will for my daughter," and Adler recalled conversations with Edward regarding his continuing intention to disinherit Cheryl.

The execution of the 1999 will was videotaped and the tape was played in court. On the tape, Edward said that he was "ashamed" of Cheryl, given that she never had a job, never finished school, and "always quit in the middle of things." He set forth his view of the situation underlying the Five Properties litigation and the other transgressions Cheryl had committed against him. Edward indicated that his relationship with her had "totally deteriorated" and that the two had not spoken since 1985. He noted that Cheryl had tried to contact him but he "refused to acknowledge anything in connection with her[.]" He disinherited her based on "all of her actions accumulatively over the period of [fifteen] years." Edward stated, "I am very adamant about my decision to disinherit her . . . . There are so many more things that developed over the years. I just picked out a few of the major incidents . . . [.] [I]n no way is she to inherit anything or any part of the will[.]" Edward also made clear in the video that Jane never sought a greater portion of his assets or to withhold them from Cheryl. He also indicated that as to Michael, "he stays completely out of it." Michael testified that he did not attend the will signing, did not know it had been executed, and did not receive a copy of it.

In September 1999, Edward sued Cheryl over a right-of-way on a business property, which Cheryl testified he withdrew one year later. She continued to attempt to contact her father. She testified that it was her Uncle Saul, Edward's brother, who was able to arrange a meeting between Edward and her divorce attorneys that ultimately resulted in Edward signing a certification in February 2000 concerning the Five Properties litigation:

This litigation, and the events surrounding it caused a serious rift in my relationship with Cheryl. While it may be too early to apply the old expression "time heals all wounds[,]" Cheryl and I have started speaking with each other again, and are moving forward towards repairing the deep rift which had existed between us for many years now.

According to Cheryl, one day in early 2000, she waited outside her father's office, and when he exited the office, she greeted him. The two subsequently went to an office underneath the building where they "started talking . . . about everything." He asked for her contact numbers and told her to only call him at the office because he did not want Jane or Michael to know that they had re-established contact, as he was afraid they would "retaliate." After Cheryl explained why she had acted the way she had in the Five Properties litigation, Edward said that although it was difficult, he could forgive her. Before they parted, Edward gave her a "big . . . bear hug and [a] kiss." Many times after that, he told her that he loved her.

Cheryl continued to see Edward for lunch when she was in New Jersey and spoke to him by phone regularly. At one of the lunches, Cheryl's Italian boyfriend joined them, and photographs taken of the three of them were put into evidence. When Cheryl talked of marrying her boyfriend, Edward said that he would come to Italy for the wedding.

Cheryl testified Edward told her that if she called the office and Charlene answered, that she should hang up. Charlene admitted that Jane instructed her to block Cheryl's calls. However, she claimed that when she told Edward of Jane's instruction, he told her that if Cheryl called, Charlene should let him know, and he would decide whether he would speak to her. Jane admitted that she told Charlene not to put through Cheryl's calls, but claimed that it was at Edward's request, although she admitted that Edward was "tentatively" prepared to resume a relationship with Cheryl. At another point in her testimony, Jane said that she instructed Charlene not to put through calls only in June 2000, after Edward was hospitalized. Longtime employee, Rose Frank, testified that she answered the office phone if Charlene was not there and connected Cheryl with Edward two or three times. Charlene never instructed her not to take Cheryl's calls. Edward's longtime bookkeeper, Dottie Mnich, testified that Cheryl called the office "many times."

In May 2000, Edward asked Cheryl to reach out to Michael because he "wanted peace before he died[,]" so she wrote Michael a letter seeking contact, but he did not respond. Cheryl testified that after their "reconciliation," Edward told her that she had nothing to worry about, as he had every intention of putting her in his will, and she and Michael would be treated equally.

In June 2000, Edward was hospitalized with cardiac problems. According to Jane, Saul and Mabel came to visit Edward the day before Father's Day. Jane, who admittedly "didn't care for" Mabel and "wasn't impressed" with Saul, testified that Mabel kept "badgering" Edward about Cheryl when Edward said he did not want to see or speak to her, and about hiring a private duty nurse. The next day, Saul returned to the hospital without Mabel and again "badgered" him about the private duty nurse and about "putting Cheryl back into his will." Edward asked Saul to leave, but Saul refused. When Jane asked Saul to leave, he told her to "shut up." After Saul again refused to leave, Jane went to the nurses' station to get assistance. When she returned, Saul "struck" her with his cane. Security escorted Saul out.

The next day, Saul wrote a letter to Edward, which was delivered to Edward in the hospital. With Jane present, Edward made hand-written comments on the letter. For instance, when Saul wrote, "I strongly feel that you should meet with Cheryl and make provisions for her in your will[,]" Edward wrote, "I did already! On tape, in writing & verbally. Zero." Jane denied attempting to influence Edward's writings on the letter. After the "Father's Day incident," the parties obtained mutual restraining orders and never spoke again.

Cheryl and Edward met in person for lunch on September 22, 2000, which turned out to be their last meeting before Edward's death in 2002. Six days following this last meeting, Charles told Adler that Edward wanted to speak with him about taking steps to insure his recent meetings with Cheryl did not "undermine his intent to disinherit her." The next day, Adler spoke with Edward on the telephone and made notes that said: "Make very strong!! despite dinners & meetings --" Adler "vivid[ly]" recalled the phone conversation in which Edward made "very clear" that his meetings with Cheryl were "not to be construed in any way as modifying his intention to disinherit her."

Adler prepared the codicil on October 4, 2000, and gave it to Charles on October 6, to give to Edward. Although Charles initially denied having any knowledge of a codicil, he later remembered that Edward wanted to make the codicil to "reemphasize and solidify" that he did not want Cheryl to be a beneficiary. Robert Fair, another longtime employee of Edward who also described himself as Edward's friend, testified that he had been encouraging Edward to reconcile with Cheryl, but also recalled Edward telling him that he was going to execute the codicil so that no one, including him, felt that the meetings meant that he had changed his feelings regarding Cheryl.

Meanwhile, on October 2, 2000, Edward was admitted to the hospital with "life-threatening" sepsis after developing a fever on September 30. When he arrived at the hospital, he was "confused," "non-verbal" and, according to his treating cardiologist, George Demidowich, "at death's door[.]" Edward remained in the hospital until October 17, and was on intravenous antibiotics for six weeks. Dr. Demidowich said it was usual for a patient in Edward's condition on October 2 to have been "normal" two days prior to hospitalization. According to Dr. Joshua Kaplan, a nephrologist and expert witness who testified on Cheryl's behalf, and also according to Dr. John Sensakovic, a Ph.D. in clinical microbiology who testified as the Estate's expert, if Edward had been suffering from sepsis on September 28 or 29, he would not have lived until October 2, when he was admitted to the hospital. When Dr. Demidowich examined Edward on October 30, he found no mental problems.

Edward executed a codicil on October 31, 2000, which referenced Cheryl's disinheritance under his June 16, 1999 will, and stated that the codicil was to "reaffirm in the strongest possible way" that "no portion of the assets of my estate shall be distributed to . . . my daughter[.]" Edward stated further in the codicil:

I have determined that it is necessary for me to reaffirm and reinforce in the strongest terms my decision to completely disinherit my daughter . . . because within the recent past on several occasions I have met with my daughter . . . and on a few of those occasions I have had lunch with her and I do not want those meetings with my daughter or any future meetings with my daughter to be construed or interpreted in any way or to otherwise serve as support for the position that my determination to disinherit my daughter . . . no longer represents my intention.

To the contrary, my decision and determination to disinherit my daughter . . . remains steadfast and unmodified.

Edward was diagnosed with chronic renal failure and commenced dialysis treatment in November 2000. He underwent treatment twice each week. The treatments primarily left him fatigued, according to Jane and Edward's office staff, but he continued to work full-time on non-dialysis days and half-days on the days of his treatment. No one, including his treating nephrologist, who saw Edward weekly, or his cardiologist, who saw Edward monthly, observed any deterioration in Edward's mental faculties once Edward started dialysis.

On April 6, 2001, Edward executed his final will, which revoked the 1999 will and codicil, and which stated:

I intentionally make no provision in this my Will for my daughter . . . . In the event that at any time or times subsequent to the date on which I am executing this my Will I shall meet with my daughter . . ., any such meeting or meetings with my daughter . . . shall not be construed or interpreted as a modification to any extent of my determination to disinherit my daughter[.]

The will also referred to the videotaping of June 16, 1999, and stated it was Edward's "express intention and direction that all of such discussions and explanations [shall] be utilized to the extent which may be necessary after my death to clarify and understand the distributive plan which I have established in this Will." He did not videotape the 2001 will because, according to Jane, he did not want to spend the money.

Among other gifts, Edward provided $10,000 each to Charlene Jacobs, Rose Frank, and Robert Fair, and then devised the remainder of his estate to Michael. Michael and Charles were named co-executors, and Charles was named trustee of a marital trust for Jane. The will provided compensation of $100,000 to Charles, as co-executor and, as trustee, the greater of a commission allowed by a court or .05 percent of the assets in the trust.

Neither Adler nor Charles attended the signing of the April 6, 2001 will, and Charles insisted he had no input into its execution. Adler never received an executed copy of the will. Adler said Edward was "very bright," "grasped things very quickly[,]" and had a "strong ego[.]" Adler described Edward as a "frustrated lawyer" who reviewed every document that Adler prepared, word for word, line by line, fought with Adler over language, and questioned why certain words or expressions were used.

Adler never saw Michael or Jane attempt to influence Edward about any will, and said that Edward was "not the kind of man that can be influenced by anybody." Adler admitted speaking to Michael on the phone five times between January and April 2001 regarding a proposed "family limited partnership agreement" and an "irrevocable family trust" and billing the calls to Edward. Adler characterized these calls as "academic" and "conceptual" and not focused on Edward's specific plans.

Adler testified that he never saw Charles try to influence Edward, despite Charles's presence at the 1999 will signing and his frequent meetings with Charles and discourse about the will. Adler indicated that none of the language in the June 1999 will, the codicil, or the 2001 will came from Charles. Adler stated, "I'm not sure either of us [Adler or Charles] could persuade [Edward] to do anything."

Charles testified that although he was aware of the disinheritance provisions, he and Edward "did not discuss family business." Charles described Edward as the "brightest, most intelligent guy I ever met in my entire life." He indicated Edward could also be "an absolute terror" and a "very overpowering guy." He explained that it was difficult to reason with Edward, and once he made up his mind, that was the way it would stay, and Edward was "not going to change his mind [about Cheryl]." Charles testified that despite Edward's illness, he saw no mental confusion or memory loss in him and never saw Michael trying to exert undue influence over Edward.

Hope Cantor, Saul's daughter and Edward's niece, testified that she visited Cheryl in Italy in July 2001. While there, she talked to Edward on the telephone twice, and when she told Edward that "things were hard" financially for Cheryl, Edward said, "[D]on't worry, I'll take care of her." In a certification submitted during the course of the pretrial proceedings, Hope contended that Edward was "very much controlled by his wife, Jane, who kept him isolated from my parents and Cheryl." She certified that Edward had been abandoned as a child and "was terrified of being abandoned and dying alone." She admitted, during her testimony, that she based that statement on what her father told her and not through personal discussions with Edward.

Michael testified that he did not know his father was preparing a will in April 2001, was not present at its signing, and never saw a copy of this will until after his father's death. He denied ever attempting to influence Edward in the disposition of his assets. Although Michael was the residuary beneficiary of his father's will, he testified that their relationship, during the last three years of Edward's life, was not close. He briefly worked for his father in the seventies and eighties, but after his father wanted him to renege on a lease agreement, he stopped working for him. Independent of his father, he became a successful businessman through his commercial real estate acquisitions and other ventures. He testified that his father "lied" to him and to others and he also believed that his father stole from him. He never sued his father because he knew that in doing so, his father would disinherit him.

According to Michael, in the latter part of 2001 and early 2002, tensions between him and his father arose over several issues: (1) his claim that his father owed him between $40 to $45 million, plus interest; (2) a dispute over their respective interests in ELM Realty, which they owned along with a business partner, Leo Masin, who died; and (3) Edward's refusal to undertake estate planning measures that would reduce estate taxes upon his death.

In her testimony, Jane denied exerting any undue influence over Edward regarding his wills. She explained that she was "taken care of" so "why would I be concerned?" She indicated that in late December 2001, Edward expressed his dissatisfaction with Michael's behavior and told her that if he did not "straighten up and fly right" he would take him out of his will. He also told Jane that he no longer trusted Adler and had scheduled an appointment with Citibank to change his will, at which time, he intended to disinherit Michael. The meeting was scheduled for February 20, 2002. However, Edward died on February 19. Michael testified that he was aware of his father's scheduled appointment at Citibank and that the purpose of the appointment was not to disinherit him but to restructure a loan and to obtain another loan.

The April 6, 2001 will was admitted to probate on March 5, 2002. Charles served as accountant for the Estate and Michael's personal business interests until November 2002, when animosities between him and Michael resulted in a severance of ties. Adler represented Michael as co-executor of the Estate from Edward's death to at least the time of his testimony at trial. Adler never represented Michael prior to Edward's death.

On appeal, the Estate raises the following points for our consideration:

POINT I

R[ULE] 4:42-9(a)(3) DOES NOT PERMIT A FEE AWARD TO A CONTINGENT FEE ATTORNEY.

POINT II

FRIVOLOUS LITIGATION SANCTIONS SHOULD HAVE BEEN AWARDED TO THE ESTATE.

A. PLAINTIFF'S BAD FAITH FILING OF COMPLAINT, ADMITTEDLY WITHOUT INVESTIGATION OR EVIDENTIARY SUPPORT.

[1.] THE TRABOCCO CERTIFICATION LAID BARE PLAINTIFF'S PRE-FILING SCHEME TO EXTORT MILLIONS OF DOLLARS FROM HER BROTHER AND THE ESTATE.

[2.] PLAINTIFF'S PRE-FILING KNOWLEDGE OF THE FALSITY OF HER TRUMPED-UP CLAIMS.

[3.] PLAINTIFF'S CONTINUANCE OF THIS LAWSUIT AFTER DISCOVERY ALSO WARRANTS THE IMPOSITION OF SANCTIONS.

POINT III

IN ALL EVENTS, PLAINTIFF WAS NOT ENTITLED TO AN AWARD OF COUNSEL FEES PURSUANT TO R[ULE] 4:42-9(a)(3).

In her cross-appeal, Cheryl raises the following points:

POINT I

THE TRIAL COURT'S FAILURE TO CREATE AND APPLY THE PRESUMPTION OF UNDUE INFLUENCE AND FAILING TO SHIFT THE BURDEN OF PROOF TO THE ESTATE WAS A MISAPPLICATION OF THE LAW. THE ESTATE'S FAILURE TO SUSTAIN ITS SHIFTED BURDEN OF PROOF SHOULD HAVE RESULTED IN A JUDGMENT FOR PLAINTIFF. [(Emphasis removed).]

A. THE STANDARD OF APPELLATE REVIEW IS DE NOVO.

B. THE LEGAL STANDARD FOR PLAINTIFF ESTABLISHING UNDUE INFLUENCE REQUIRED ONLY A PREPONDERANCE OF THE EVIDENCE OF CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES.

1. THE COURT CORRECTLY FOUND CONFIDENTIAL RELATIONSHIPS.

a. THE COURT FOUND THAT MICHAEL AND EDWARD "CLEARLY[] WERE IN A CONFIDENTIAL RELATIONSHIP WITH HIS FATHER," "CLEARLY HAD THE MOST SIGNIFICANT RELATIONSHIP," "CLEARLY HAD THE MOST TO GAIN," "CLEARLY CONTACTED CHARLES JACOBS AND ALAN ADLER," AND "THROUGH THOSE RELATIONSHIPS, SUSPICIOUS CIRCUMSTANCES."

b. THE COURT FOUND CHARLES JACOBS HAD CONFIDENTIAL RELATIONSHIPS WITH EDWARD, MICHAEL AND JANE[,] WHICH WERE INTERTWINED, AND RECEIVED BENEFITS UNDER THE WILL.

c. JANE CANTOR WAS IN A CONFIDENTIAL RELATIONSHIP AND RECEIVED GREATER BENEFIT UNDER THE WILL.

d. ALAN ADLER HAD CONFIDENTIAL RELATIONSHIPS WITH EDWARD CANTOR, CHARLES JACOBS AND MICHAEL CANTOR AND ULTIMATELY RECEIVED BENEFITS.

e. ADLER'S CONFIDENTIAL RELATIONSHIP, WHILE NOT AS LENGTHY OR PERSONAL AS JACOBS'[S], WAS SUFFICIENT UNDER THE LAW.

2. SUSPICIOUS CIRCUMSTANCES NEED ONLY BE "SLIGHT." UNDUE INFLUENCE NEED NOT BE BY DIRECT EVIDENCE, BUT "MAY BE INFERRED OR SHOWN BY FACTS AND CIRCUMSTANCES IN EVIDENCE."

a. THE COURT FOUND "SOME SUSPICIOUS CIRCUMSTANCES" BASED ON ADLER'S ADMITTED RELATIONSHIP WITH MICHAEL CANTOR BOTH BEFORE AND AFTER THE TESTATOR'S DEATH.

b. AN UNNATURAL WILL, WHICH FAILS TO PROVIDE FOR THE NATURAL OBJECTS OF THE BOUNTY OF THE TESTATOR, IS A "FORMIDABLE" CIRCUMSTANCE IN RAISING THE SUSPICION OF UNDUE INFLUENCE.

c. FOLLOWING THE FATHER'S DAY INCIDENT, EDWARD CANTOR WAS "EXCLUDED FROM THE SOCIETY" AND ISOLATED FROM HIS DAUGHTER AND OTHER FAMILY MEMBERS.

d. SUSPICIOUS CIRCUMSTANCES SURROUNDING THE FORMATION, EXECUTION AND POSSESSION OF THE CODICIL ABOUND IN THE RECORD.

i. THE CODICIL ORIGINALLY PRODUCED BY THE ESTATE WAS FORGED BY CHARLENE JACOBS.

ii. JACOBS[] GAVE CRITICAL TESTIMONY (DIAMETRICALLY OPPOSED TO ADLER'S) THAT HE NEVER SPOKE TO ALAN ADLER ABOUT THE CODICIL, I.E., AS TO WHAT TO PUT INTO THE CODICIL OR DIRECTION TO PREPARE IT FOR EDWARD CANTOR. [(Emphasis removed).]

iii. ADLER KNEW VIRTUALLY NOTHING ABOUT THE RESUMPTION OF THE RELATIONSHIP BETWEEN CHERYL AND HER FATHER.

iv. ADLER WAS NOT INFORMED OF EDWARD CANTOR'S MEDICAL HISTORY DURING THE PERIOD HE WAS PREPARING THE CODICIL, OR AT THE TIME OF ITS EXECUTION, OR AT THE TIME HE WAS PREPARING THE WILL, OR AT THE TIME OF ITS EXECUTION OR AT ANY TIME PRIOR TO EDWARD CANTOR'S DEATH. [(Emphasis removed).]

v. EDWARD'S INTENTION TO DISINHERIT CHERYL OR INCORPORATE THE CODICIL INTO THE 2001 WILL[] WAS NEVER DISCUSSED WITH ALAN ADLER. THE TIMING OF THE CODICIL DURING A PERIOD EDWARD WAS COMATOSE AND NON-VERBAL IS SUSPICIOUS. THE IN FUTURO PROVISIONS OF THE CODICIL AND WILL ARE OF DOUBTFUL LEGAL VALIDITY.

e. THE USE OF A "POINT MAN" TO COMMUNICATE THE WISHES OF THE TESTATOR TO THE ATTORNEY PREPARING THE WILL WAS HIGHLY UNUSUAL.

f. THE PAUCITY OF EVIDENCE OF DISCUSSIONS REGARDING CHERYL CANTOR OR HER DISINHERITANCE IS HIGHLY SUSPICIOUS.

i. ADLER'S VOLUMINOUS, DETAILED NOTES MENTION CHERYL ONLY ONCE.

ii. ADLER'S DETAILED NOTES ABOUT THE FORMATION OF THE CODICIL REFLECT THAT THERE ARE NO NOTES ON SEPTEMBER 29, 2000[,] THE DATE OF AN ALLEGED CONVERSATION WITH EDWARD CANTOR. [(Emphasis removed).]

iii. THERE WAS ALSO A COMPLETE LACK OF DISCUSSION OF CHERYL'S DISINHERITANCE BY JACOBS WITH ALAN ADLER OR WITH EDWARD CANTOR.

g. THE FORMATION, EXECUTION AND SUPERVISION OF THE PROBATED WILL AND THE UNUSUAL ROLE JACOBS PLAYED IN THE FORMATION WERE ACKNOWLEDGED BY ADLER.

i. ADLER FAILED TO SUPERVISE THE EXECUTION OF THE 2001 WILL, DID NOT HAVE IT VIDEOTAPED, AND ENTRUSTED THE WILL AND ALL OF ITS COPIES TO CHARLES JACOBS.

ii. THE COURT FOUND ADLER "WAS AWARE" OF MICHAEL'S CLAIMS OF "DEBT" ENTITLING HIM TO THE ENTIRETY OF THE COMMERCIAL HOLDINGS OF HIS FATHER, AND THAT ADLER WAS PRESENTED BY MICHAEL WITH "ESTATE PLANS" FOR EDWARD.

iii. JACOBS CONFIRMED MICHAEL DISCUSSED HIS DEBT WITH ALAN ADLER AND HIMSELF IN DIRECTING EDWARD'S ESTATE PLANNING DURING THE SAME TIME JACOBS AND ADLER WERE PREPARING EDWARD CANTOR'S PROBATED WILL.

h. JANE CANTOR'S TESTIMONY ON THREATS MADE BY MICHAEL CANTOR TO HIS FATHER, AND "FEARS" EDWARD HAD OF WHAT MICHAEL MIGHT DO TO EDWARD, WERE HIGHLY PROBATIVE BUT WERE NOT CONSIDERED OR APPLIED TO THE LAW.

i. THE FINAL INTENT OF THE TESTATOR WAS TO EXCLUDE MICHAEL FROM THE WILL.

3. UPON FINDING BOTH CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES, THE PRESUMPTION OF UNDUE INFLUENCE ARISES AND THE BURDEN OF PROOF SHIFTS TO THE ESTATE[.] [T]HE COURT BELOW, BY FAILING TO APPLY THE PRESUMPTION OR SHIFT THAT BURDEN OF PROOF TO THE ESTATE, MISAPPLIED THE LAW.

a. THE COURT REQUIRED PROOF OF "TOTAL DOMINATION."

b. THE COURT'S MISAPPLICATION OF THE LAW.

i. WHEN THE COURT FINALLY ADDRESSES THE LEGAL EFFECT OF THE CONFIDENTIAL RELATIONSHIP BETWEEN MICHAEL CANTOR AND EDWARD CANTOR, THE COURT'S FINDINGS REJECT THE ESTATE'S DEFENSES AND IGNORE SUBSTANTIAL EVIDENCE OF MICHAEL'S FINANCIAL DOMINANCE OVER EDWARD.

ii. THE COURT CONCLUDED[,] WITHOUT SUPPORT IN THE RECORD[,] THAT THE ESTATE SOMEHOW REBUTTED THE PRESUMPTION OF UNDUE INFLUENCE.

c. THE ESTATE FAILED TO SUSTAIN ITS LEGAL BURDEN OF PROOF.

[i.] THE COURT BELOW MISSES THE ["]REAL ISSUE" AND THE "REAL QUESTION" IN THE CASE.

[ii.]THE COURT ERRONEOUSLY ADOPTED THE VIDEO OF THE REVOKED 1999 WILL, WHICH NO LONGER REFLECTED THE RELATIONSHIP BETWEEN EDWARD AND CHERYL OR EDWARD'S HEALTH STATUS.

d. UNDUE INFLUENCE MAY BE ACHIEVED BY EITHER COERCION OR PEACEFUL MEANS, I.E., YIELDING FOR THE SAKE OF PEACE.

[i.] THE ESSENCE OF THE PLAINTIFF'S CASE WAS "A DESIRE TO KEEP THE PEACE." THE COURT FAILED TO APPLY THE LAW.

[ii.]THE COURT FAILED TO APPLY THE LEGAL "POLESTAR" - EDWARD'S FINAL INTENT TO REMOVE MICHAEL FROM THE WILL.

POINT II

THE COURT'S RELIANCE UPON LAY OPINION TESTIMONY TO SUPPORT ITS ULTIMATE CONCLUSION THAT EDWARD CANTOR WAS INCAPABLE OF BEING UNDULY INFLUENCED AND ITS APPLICATION OF THE LAW REQUIRING DOMINATION IN EVERY UNDUE INFLUENCE CASE IS REVERSIBLE ERROR. [(Emphasis removed).]

A. RELIANCE ON LAY OPINIONS WHICH LACKED EITHER FOUNDATION OR COMPETENCE.

B. THE INCAPABILITY-OF-BEING-INFLUENCED DEFENSE.

C. EXCUSING MICHAEL'S FINANCIAL DOMINANCE AND ADMITTED ATTEMPTS AT INFLUENCING THE DISPOSITION OF EDWARD'S ASSETS, BY REPLACING IT WITH "PERSONALITY," MISAPPLIES THE LAW.

D. THE PLAINTIFF'S BURDEN OF PROOF DID NOT REQUIRE A PREPONDERANCE OF THE EVIDENCE OF DOMINATION OVER EDWARD CANTOR.

E. DOMINATION IS NOT REQUIRED TO INVOKE A PRESUMPTION OF UNDUE INFLUENCE WHERE THERE IS A CONFIDENTIAL RELATIONSHIP AND SUSPICIOUS CIRCUMSTANCES.

POINT III

PLAINTIFF WAS DEPRIVED OF PROCEDURAL DUE PROCESS BY THE TRIAL COURT. [(Emphasis removed).]

A. THE TRIAL COURT'S BIZARRE TRIAL PROCEDURE IN ALLOWING THE ESTATE TO CROSS[-]EXAMINE WITNESSES OUTSIDE THE SCOPE OF PLAINTIFF'S DIRECT EXAMINATION MADE THE SHIFTING OF THE BURDEN OF PROOF IMPOSSIBLE.

B. THE COURT FAILED IN ITS ESSENTIAL FACT-FINDING FUNCTION OF MAKING CREDIBILITY FINDINGS AS TO ANY WITNESSES OTHER THAN MICHAEL AND CHERYL.

1. THE COURT FOUND MICHAEL'S TESTIMONY ON LACK OF CONFIDENTIAL RELATIONSHIP TO BE "NOT CREDIBLE."

2. IT IS ONLY CHERYL'S TESTIMONY ABOUT THE PROMISE TO PUT HER INTO THE WILL (NOT ESSENTIAL IN AN UNDUE INFLUENCE CASE) THAT THE COURT FOUND NON-CREDIBLE.

3. THE COURT SEEMINGLY FORGOT ITS OWN ANALYSIS IN UTILIZING CHERYL'S TESTIMONY IN THE DIVORCE ACTION AS AFFECTING HER CREDIBILITY AND "TRYING TO HAVE IT BOTH WAYS."

C. FACTUALLY EVALUATING THIRTY-FIVE DAYS OF TRIAL TESTIMONY SPREAD OVER SIX MONTHS MADE IT IMPOSSIBLE FOR THE TRIAL COURT TO MAKE ESSENTIAL FACTUAL FINDINGS WITHOUT COUNSEL'S SUBMISSION OF DOCUMENTED FINDINGS OF FACT AND CONCLUSIONS OF LAW.

POINT IV

THE COURT ABUSED ITS DISCRETION IN (1) FAILING TO CONDUCT A COMPLETE ANALYSIS OF THE EXPERT WITNESS TESTIMONY AND (2) CONDUCTING AND RELYING UPON ITS OWN PSYCHOANALYSIS OF EDWARD CANTOR. [(Emphasis removed).]

A. THE COURT CREDITED THE PLAINTIFF'S EXPERT, JOSHUA KAPLAN, AS "CLEARLY A RESPECTED NEPHROLOGIST" WHICH "NO ONE COULD DISAGREE WITH." [(Emphasis removed).]

B. THE COURT ERRONEOUSLY REQUIRED THAT DR. KAPLAN'S EXPERT TESTIMONY NOT ONLY BE SUPPORTED MEDICALLY AND STATISTICALLY BUT THAT IT NECESSARILY APPLY TO "EVERY PATIENT."

C. DR. SENSAKOVIC, THE ESTATE'S EXPERT, FAILED TO "REBUT" DR. KAPLAN'S OPINION. [(Emphasis removed).]

1. DR. SENSAKOVIC'S RESEARCH AGREED WITH DR. KAPLAN'S.

2. DR. SENSAKOVIC'S OPINION DEALT ONLY WITH COMPETENCY.

3. DR. SENSAKOVIC WAS UNQUALIFIED TO REFUTE DR. KAPLAN'S OPINIONS OR TO PROVIDE A "PERSONALITY ANALYSIS."

D. DR. DEMIDOWICH, THE DECEDENT'S CARDIOLOGIST WHO CONDUCTED ONLY "CARDIOLOGICAL FOLLOWUP CONSULTATION" . . . WAS NOT OFFERED AS AN EXPERT, WAS NOT COMPETENT TO GIVE NOR DID HE GIVE EXPERT TESTIMONY TO REBUT DR. KAPLAN'S OPINION OR RENDER A MEDICAL OPINION. RATHER, HE OFFERED ONLY "IMPRESSIONS" WHICH WERE ERRONEOUSLY RELIED UPON BY THE COURT BELOW IN ITS EXPERT ANALYSIS. [(Emphasis removed).]

E. DR. NEIL LYMAN, THE DECEDENT'S TREATING NEPHROLOGIST, AGREED WITH PLAINTIFF'S EXPERT, DR. KAPLAN. [(Emphasis removed).]

F. JOANNE HALL WAS UNQUALIFIED TO GIVE EXPERT OPINION TESTIMONY. HER "MENTAL STATUS EVALUATION" IN HER "PSYCHOSOCIAL ASSESSMENT" AND A PSYCHOLOGICAL EVALUATION OF EDWARD CANTOR ON JANUARY 4, 2001 WERE TOTALLY WITHOUT FOUNDATION OR COMPETENCE. [(Emphasis removed).]

G. THE COURT'S ULTIMATE "MEDICAL" CONCLUSION AFTER MORE THAN SEVEN (7) DAYS OF MEDICAL TESTIMONY IS REMARKABLY SUPERFICIAL, SIMPLISTIC, AND LEGALLY ERRONEOUS.

POINT V

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING ATTORNEY FEES TO PLAINTIFF PURSUANT TO R[ULE] 4:42-9(a)(3). [(Emphasis removed).]

A. R[ULE] 4:42-9(a)(3) DOES ALLOW AN AWARD OF FEES IN A CONTINGENCY FEE CASE.

B. RULE 4:42-9(a)(3) IS DISPOSITIVE AND AUTHORIZES THE COURT'S AWARD OF ATTORNEYS FEES TO THE WILL CONTESTANT.

1. THE POLICY REASONS FOR R[ULE] 4:42-9(a)(3) SUPPORT THE TRIAL COURT'S AWARD.

2. STANDARD OF REASONABLE CAUSE IN RULE 4:42-99(a)(3) WAS MET.

POINT VI

THE COURT FAILED TO APPLY RULE 4:42-9(a)(3) OR RPC 1.5 AND ABUSED ITS DISCRETION IN REDUCING CONNELL FOLEY'S COUNSEL FEES FROM $1.3 [MILLION] TO $399,658[]. [(Emphasis removed).]

A. THE ALLEGATIONS BY THE ESTATE THAT CONNELL FOLEY'S BILLING RECORDS WERE "RE-MASTERED" IS IRRELEVANT TO THE ISSUE OF FEES.

B. THE CLAIM THAT THE BILLING RECORDS WERE AMBIGUOUS AND DUPLICATIVE WAS WITHOUT FOUNDATION AND RESULTED IN REDUCTION OF CONNELLY FOLEY'S BILLING BY [FIFTY PERCENT] OR APPROXIMATELY $600,000.

C. THE COURT IMPROPERLY APPLIED "THE LODESTAR METHOD" TO FURTHER CUT FEES BY AN ADDITIONAL 1/3 OR $218,764. AS THE LODESTAR METHOD IS INAPPLICABLE TO RULE 4:42-9(a)(3), THIS WAS A CLEAR ABUSE OF DISCRETION.

D. THE COURT'S CUTTING [OF] THE PLAINTIFF'S FEES BASED ON DUPLICATIVE OR CUMULATIVE EFFORTS WAS ARBITRARY, CAPRICIOUS AND UNJUSTIFIED. IT WAS UNWARRANTED BY THE RECORD AND INCONSISTENT WITH THE SPIRIT OF THE RULES.

E. THE TRIAL COURT PENALIZED THE PLAINTIFF FOR DELAYS AND REPETITIVENESS CAUSED BY THE COURT'S ACQUIESCENCE TO THE ESTATE'S TRIAL PROCEDURES.

F. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT CONNELL FOLEY SHOULD NOT HAVE BILLED OR BECOME INVOLVED WITH MOTIONS TO REMOVE MICHAEL CANTOR AS EXECUTOR OR THE APPEAL FROM HIS REMOVAL.

G. THE FEES INCURRED IN THE FLORIDA ACTION WERE ESSENTIAL IF THE CASE IN NEW JERSEY WAS TO CONTROL THE ISSUE OF UNDUE INFLUENCE.

H. THE TRIAL COURT ERRED IN DEDUCTING CHERYL'S $50,000[] RETAINER TO CONNELL FOLEY FROM THE FEE AWARD.

POINT VII

THE TRIAL COURT PROPERLY CONCLUDED THAT THE ESTATE WAS NOT ENTITLED TO FRIVOLOUS LITIGATION SANCTIONS. [(Emphasis removed).]

A. STANDARD OF REVIEW.

B. CROSS-RESPONDENT/APPELLANT PROVED HER CASE.

1. CROSS-RESPONDENT / APPELLANT'S PROOFS DEMONSTRATED, AND THE COURT BELOW FOUND, CONFIDENTIAL RELATIONSHIPS AND SUSPICIOUS CIRCUMSTANCES.

2. THE ESTATE NEVER HAD A BASIS FOR ITS "NOT A SCINTILLA OF EVIDENCE" GROUNDS FOR THE IMPOSITION OF FRIVOLOUS LITIGATION SANCTIONS.

C. THE ESTATE'S FRIVOLOUS LITIGATION MOTION WAS UNTIMELY.

D. THE ESTATE'S APPEAL OF THE FAILURE TO AWARD FRIVOLOUS LITIGATION FEES IS FROM A MOTION FOR RECONSIDERATION.

We first address Cheryl's cross-appeal and conclude, based upon our review of the record, the arguments of counsel, and consideration of the applicable legal principles, the court did not commit reversible error when it failed to "create and apply the presumption of undue influence" and failed "to shift the burden of proof." The court properly concluded that there was no basis to shift the burden of proof and, assuming the burden shifted, the proofs presented by the Estate overcame any presumption of undue influence in the execution of the April 6, 2001 will.

At the outset, there is a presumption that a will's "testator was of sound mind and competent when he executed the will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). However, if the execution of the will was tainted by "undue influence," it may be overturned. Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 176 (1981); Gellert, supra, 5 N.J. at 76. "[U]ndue 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[.]" In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008). However, "[n]ot all influence is 'undue' influence." Gellert, supra, 5 N.J. at 73. "It denotes conduct that causes the testator to accept the 'domination and influence of another' rather than follow his or her own wishes." In re Estate of Stockdale, supra, 196 N.J. at 303 (citing Haynes, supra, 87 N.J. at 176).

"Ordinarily, the burden of proving undue influence falls on the will contestant." Id. at 303. However, "if the will benefits one who stood in a confidential relationship to the testator" and that "confidential relationship" is "coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption." Ibid. A confidential relationship exists if the testator, "'by reason of . . . weakness or dependence,' reposes trust in the particular beneficiary, or if the parties occupied a 'relation[ship] in which reliance [was] naturally inspired or in fact exist[ed].'" Ibid. (quoting In re Hopper, 9 N.J. 280, 282 (1952)). "The factors to be considered in determining whether a confidential relationship is present . . . include whether trust and confidence between the parties actually exist[ed], whether they [were] dealing on terms of equality, . . . whether one side [has] exerted 'over-mastering influence' over the other or whether one side [was] weak and dependent." Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007). "Its essentials are both 'a reposed confidence and the dominant and controlling position of the beneficiary of the transaction.'" Ibid. (quoting Stroming v. Stroming, 12 N.J. Super. 217, 224 (App. Div.), certif. denied, 8 N.J. 319 (1951)).

Plaintiff has the burden of proving, by a preponderance of the evidence, that a confidential relationship exists. Ibid. The "preponderance of the evidence" standard requires a plaintiff to establish that the existence of a confidential relationship is "more probable than not." Id. at 403. However, existence of a confidential relationship between the testator and the beneficiary does not alone create a "presumption of undue influence." Gellert, supra, 5 N.J. at 71. There must also be "suspicious circumstances," which need only be "slight." Ibid.; Haynes, supra, 87 N.J. at 176; In re Will of Liebl, 260 N.J. Super. 519, 528 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).

The trial court found that confidential relationships existed between 1) Michael and Edward; 2) Jane and Edward; 3) Charles and Edward, Michael and Jane; and 4) Adler and Edward, Charles and Michael. Therefore, Cheryl contends the court erred in requiring her to "to prove confidential relationships and suspicious circumstances by a preponderance of the evidence." We disagree.

It is evident from the court's findings that its use of the term "confidential relationship" to describe Edward's relationship with his wife Jane, son Michael, accountant Charles, and attorney Adler, was not intended as a legal characterization for purposes of determining that there was undue influence exerted over Edward at the time he executed his will.

For example, the court concluded that unquestionably there was a confidential relationship between Edward and Charles "based upon [their] long-term association[.]" Specifically, the court posed the following question, which it then proceeded to answer:

[I]s there any evidence to show, other than what I just referred to in terms of the inferences of being the family accountant . . . is there any evidence, certainly a preponderance of the evidence, to show that Charles Jacobs was the equal, and somehow had an influence, dominating influence, over Edward Cantor? There simply is none.

Charles Jacobs could not influence Edward Cantor. . . . Charles Jacobs to Edward Cantor was the functionary. He was his accountant and close friend, yes. But he was there to do Edward Cantor's bidding. There's no question about that. He paid him hundreds of thousands of dollars to do it. He told him, I'm taking money out of these accounts, of which Michael has a [seventy-six] percent interest. I want you to do these things, and Charles did them in that respect. There's no question about that.

Turning to Edward's relationship with Adler, the court found that the confidential relationship arose out of an attorney-client relationship. The court observed that the two men were not in "unequal relationships" as a result of Edward's then existing physical condition or any particular physical stressors.

Further, the court found that Michael had not been involved in the preparation of the 2000 codicil or the 2001 will, and never saw the 2001 will until after Edward's death. The court also noted the business disagreements between father and son and clearly found that there was a confidential relationship, but not in the legal sense:

So confidential relationship? Yes, indeed. Trust between the two of them? Yes, indeed. A factor with respect to a presumption of undue influence. In a superior position to his father or dominating his father, because of his father's weakness or dependency, or being a dominant force in his father's life? No. If anything, he was dealing on equal terms with his father. He could not influence Edward Cantor. No one could. Every witness

said it. Every witness talked about his superiority in that regard.

The court did not point to specific facts that led it to conclude there no confidential relationship between Edward and Jane, in the legal sense. However, there was nothing in the record to suggest otherwise.

Addressing the "suspicious circumstances" component of an undue influence analysis, the court noted that there were slight "suspicious circumstances" in so far as the timing of the execution of the April 2001 will and the fact that Adler was communicating with Michael during this time period and also represented the Estate after Edward's death. The court nonetheless concluded that, in the absence of evidence of confidential relationships in the legal sense, its finding of slight suspicious circumstances was insufficient to shift the burden to defendants to overcome a presumption of undue influence. The court ruled that plaintiff failed to prove, by a preponderance of the evidence, that anyone exerted undue influence over Edward in the preparation and exertion of the April 2001 will.

In reviewing a trial court's determination on the existence of a confidential relationship, we may "'not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Pascale v. Pascale, 113 N.J. 20 (1988) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). There is substantial credible evidence in the record to support the trial court's findings and therefore no basis to disturb the trial court's conclusion that plaintiff failed to sustain her burden.

In addition, we observe the trial court additionally found, assuming the existence of a confidential relationship and suspicious circumstances, the Estate satisfied its burden of overcoming the presumption of undue influence and demonstrated that there was no such influence at the time the probated will was executed:

This was a fearless man. He wasn't going to answer to anyone in that regard. And the evidence . . . is overwhelming in that respect. His illness didn't do him in. His financial stresses clearly didn't do him in, because he never thought they were financial stresses. There was not one witness who comes forward to say, boy, Edward complained about the fact that he was under all of this financial stress and he was having a great deal of difficulty dealing with it. . . .

What we do have is Edward suing people, threatening suit against his own son. His own son threatening suit against him. Dealing in millions of dollars everyday. Taking millions of dollars. Spending millions of dollars on boats. Buying an ocean liner for a thousand feet [sic], and spending money on that. Buying shipyards. Working in millions of dollars everyday.

So when Michael writes him a letter and says, you owe me $40 million, that is not going to shake a man like Edward Cantor as it would other individuals. It's just another day at the office for this man.

Plaintiff argues that this finding was incorrect because the judge's "overarching personality analysis" and its "corollary" that Edward could not be influenced were "basic errors in the application of the controlling law" because "it is possible to influence [e]very human being." While this argument may have theoretical merit, the overwhelming testimony from numerous witnesses, including those who had worked for Edward for many years and those who interacted with him in business matters or in connection with his medical condition, was that despite his illnesses and connections with Michael, Jane, Charles and Adler, Edward was an extremely strong individual who spent his life dictating to others, not taking "no" for an answer, and doing things his way, despite opposition.

In addition to the many people who worked for or with Edward and testified to his dictatorial and unyielding personality, the record discloses specific examples of his formidable character, even while battling his medical condition. First, despite Edward telling Jane that Michael was "badgering" him about executing estate tax planning devices, and despite Adler's and Charles's strong recommendation that he finalize the tax planning to avoid subjecting his estate to a substantial tax obligation, Edward refused to finalize the recommended tax planning because it would have meant giving up control of his assets during his lifetime. Second, despite his doctor's disapproval, Edward continued his plans to outfit his yacht with dialysis equipment.

In short, the undisputed evidence showed that Edward was a formidable person who remained that way until his death, notwithstanding his health problems. The judge appropriately found that Edward was not a man who was easily influenced, nor was he in fact influenced by Michael, Jane, Charles, or Adler in the execution of the April 6, 2001 will. Moreover, assuming the Estate had the burden to prove there was no undue influence, we are in complete agreement with the trial court's conclusion that the Estate overwhelmingly sustained that burden.

The remaining points raised by Cheryl are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

II.

We next address the Estate's claim in its appeal that Cheryl was not entitled to an award of counsel fees.

Rule 4:42-9 states:

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

. . . .

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. 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. . . .

In a will contest, the allowance of counsel fees under Rule 4:42-9(a)(3) is discretionary. In re Reisdorf, 80 N.J. 319, 327 (1979). "While deference will ordinarily be given to discretionary decisions, such decisions will be overturned if they were made under a misconception of the applicable law." O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997). Where the decision turns on a question of law that flows from established facts, the trial court decision is not entitled to any deference, and appellate review is de novo. Dempsey v. Alston, 405 N.J. Super. 499, 509 (App. Div.), certif. denied, 199 N.J. 518 (2009).

"Except in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute." In re Reisdorf, supra, 80 N.J. at 326. An unsuccessful contestant is entitled to costs when he or she shows "reasonable cause" for bringing a probate challenge, defined as a belief that "rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced[.]" In re Will of Caruso, 18 N.J. 26, 35 (1955); accord In re Will of Eddy, 33 N.J. Eq. 574, 578 (E. & A. 1881). This requirement "'works no hardship upon the contestant and affords some protection to the estate from speculative and vexatious litigation.'" In re Caruso, supra, 18 N.J. at 35 (quoting In re Sebring's Will, 84 N.J. Eq. 453, 455 (Prerog. Ct. 1915)).

In ruling on plaintiff's motion for counsel fees, the trial court summarized plaintiff's theory of the case as, "there was a reconciliation, that Mr. Cantor[,] the decedent[,] was very ill, was subject to undue influence because of his illness, . . . that his son Michael was claiming some $40 million[, and] that his father was putting financial pressure on him." The court then reiterated its earlier findings in dismissing Cheryl's complaint in which it noted that Michael's claim to millions had no effect on Edward, that even though he was ill, "he was one of the exceptions that the expert talked about[,] that his illness wouldn't have affected him. He was in business every day right up until the very end." The court also found that although there was a reconciliation between plaintiff and Edward, "it was tenuous at best in terms of the time lines as to the effect on Edward in that regard." The court then stated, "[s]o there's proofs here[,]" and then proceeded to address the reasonableness of the fees being sought.

After rendering these findings, however, the court did not analyze the reasonableness of plaintiff's will contest in light of those findings. Rather, it appears the court was implicitly influenced by the fact that Cheryl's contest survived three earlier summary judgment motions:

But we had [thirty-five] days of trial here in which the [c]ourt was looking at all of the facts and circumstances as to really what the plaintiff was claiming in that regard and the rebuttal to all of those claims, the rebuttal to was there a reconciliation[,] and even if there was, what was the true nature of that reconciliation. That's what I had to deal with, and that's what was presented to me.

We know that the decedent was ill. We know he was extremely ill. We know he had suffered other problems besides his renal failure. And the rebuttal to that is what was the effect of that in the day-to-day functioning - - mental functioning and physical functioning of Edward Cantor, and the [c]ourt made all its findings in that regard.

And now we heard about all of his financial empire and how [as] he got older[,] he sold off a lot of these buildings, how there were partnerships with Michael and that even though he only had [one] percent, he was taking the monies from Michael and his - - Michael's majority interest in that. I heard all of that testimony and determined[,] as I concluded[,] just another day at the office for Edward Cantor.

So I had to deal with all of those issues in trial, and that's really what I was saying before. Even though it was quote "unspoken" end quote before Judge Stanton, Judge Cramp, Judge MacKenzie, and Judge Langlois, they understood . . . what would be required in that regard and why summary judgment could not have been granted in that respect.

At the summary judgment stage of litigation, a court is viewing all of the evidence in the light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Thus, the fact that three judges denied the Estate's prior summary judgment motions is, we believe, dispositive of the absence of merit to the Estate's claim for frivolous litigation sanctions. It is not, however, dispositive of the ultimate determination of the reasonableness of Cheryl's claim. By the conclusion of the trial, however, the court, as the trier of fact, had the opportunity to consider and weigh all of the evidence and to make credibility determinations after observing witnesses under direct or cross-examination. As such, the posture of the case was different and the court was in a better position at the conclusion of the trial to then assess the reasonableness of the will contest. The court's factual findings, when considered against the legal standard that counsel fees in probate actions should not be awarded in meretricious cases, persuades us the court erred, as a matter of law, in awarding counsel fees to Cheryl. In re Reisdorf, supra, 80 N.J. at 326. The court's findings do not support any conclusion other than that Cheryl's will contest was meretricious. Ibid.

The statements made during Cheryl's divorce, after Edward's death, were convincing evidence of plaintiff's lack of reasonable cause to contest the will. In the divorce trial, plaintiff urged the court to find that she was disinherited because of her husband's bad acts against her father. She made no mention of Michael's or anyone else's undue influence. She admitted that she never told the divorce judge that she and her father had reconciled, or that he had promised to take care of her in his will. Notably, her contentions in the divorce case were made after she filed the complaint in the this matter. In an effort to explain the inconsistency between what was said during her divorce trial and the will contest, Cheryl testified that at the time of her divorce testimony, she "didn't know everything regarding what Michael and Jane had been doing[.]" Accepting the truth of that testimony, Cheryl could not, at the time she filed her complaint, have had reasonable cause to believe that undue influence had been exercised over her father in the execution of his April 6, 2001 will. Thus, in filing the complaint, not knowing what "they had been doing," plaintiff had no more than "hope" that the examination of witnesses would uncover wrongdoing, and that is not enough to satisfy the standard. In re Estate of Tenenbaum, 118 N.J. Eq. 405, 407-08 (Prerog. Ct. 1935), aff'd, 119 N.J. Eq. 488 (E. & A. 1936) (holding no reasonable cause existed where contestant had only "doubt and suspicion as to the validity of the will" and prolonged "his contest when he had no affirmative proof of undue influence.")

Other circumstances point to plaintiff's lack of reasonable cause that her ill father had been subjected to undue influence. Plaintiff maintained the she spoke to her father regularly from early 2000 until his death and was aware of his illnesses. Despite that knowledge, in December 2001, eight months after the execution of the April 6, 2001 will, she asked her father to serve as an expert witness in the areas of real estate and commercial building construction in her divorce case. This indicates a lack of reasonableness in her belief that Edward was so weak and ill that his mind had deteriorated to the point that other people were directing his decisions.

Further, plaintiff claimed that she spoke to Edward's office staff regularly and was friendly with some of them. Yet, there was no indication in the record that prior to filing her complaint, she made any attempt to talk to the staff about her father's condition, which would not have been an onerous task. Had she done so, she would have learned that all were in accord that Edward, although tired after dialysis, remained in firm command of his own life and was not subject to anyone's undue influence.

The record reveals further that prior to filing her complaint, plaintiff had no evidence whatsoever that her father was subject to undue influence. The only thing she knew was that he had renal disease. As the case progressed, depositions were obtained, and the evidence mounted against her position. Numerous people who were very close to Edward consistently testified that Edward was in command of his decisions and that no one influenced him. Yet, Cheryl pursued her claims through a lengthy trial that, as the trial court found, was, in large part, repetitious and irrelevant. Much of the testimony focused on events that happened after Edward executed the April 6, 2001 will, such as Michael's increasing demands for payment of his debt and requests for estate planning devices. Not even Jane, who was engaged in litigation with Michael, or Charles, who had also engaged in hostilities and litigation with Michael, testified that Michael exerted any undue influence over his father. In the end, plaintiff's claim was as hollow as it had been at the beginning.

In short, at the outset of the case, plaintiff knew only that she had been disinherited and that her father had been ill. Although the bare circumstances of being disinherited by her ill father and the bulk of the estate going to Michael may have been sufficient to excite an apprehension in the court that undue influence was at work, plaintiff had knowledge beyond what she advised the court. Based solely upon her own testimony, Cheryl was in contact with her father, whether in person, telephonically or through her divorce attorney, before, during and after the time he executed the April 2001 will, and she offered no evidence of her first-hand recognition that his health had changed him from a formidable person to a weak individual controlled by others. Had she believed that to be the case, she would not have asked him to be an expert witness in her divorce trial and she would not have blamed her ex-husband for her disinheritance, but, instead, those who she now alleges exerted undue influence over Edward.

In re Sebring's Will cautions against awarding counsel fees where reasonable cause to contest the will has not been established because the failure to do so "affords an easy mode for a disappointed heir to thwart the intentions of the testator by squandering the estate in litigation, or compelling the legatees to accede to unreasonable terms of settlement." 84 N.J. Eq. at 455. The factual findings of the trial court here do not support any conclusion other than the absence of reasonable cause to contest the will. Therefore, the court erred, as a matter of law, when it found that Cheryl was entitled to an award of counsel fees. In view of this determination, we need not address whether the fees awarded were excessive or, alternatively, should have been limited to the $50,000 as set forth in Cheryl's retainer agreement with her attorney.

The Estate's arguments in support of its contention that the trial court erred in denying its motion to reconsider the denial of its application for the imposition of frivolous litigation sanctions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e).

Affirmed in part, reversed in part, and remanded for the entry of an order vacating the counsel fee award.

Because there are a number of persons throughout the opinion who share last names, we refer to these persons by their first names and, in doing so, we intend no disrespect.

The court stayed enforcement of the judgment pending appeal provided the Estate posted $23,979.43 in anticipated post-judgment interest, resulting in a total aggregate counsel fee and costs award of $423,637.

New Jersey Racketeer Influenced and Corrupt Organization Act, N.J.S.A. 2C:41-1 to -6.2

2012 update Wills and Estate Planning- Free Seminar

2011-11-05T18:57:00.001-07:00

Wednesday January 11, 2012 12:15-1:00 PM

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers,

COST: Free if you pre-register. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2012 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/Estate-Planning-2012.htm

Contested Probate and Removing an Executor from an Estate

2011-10-30T07:51:00.001-07:00

Contested Probate and Removing an Executor from an Estate

by Kenneth A. Vercammen, Esq.

Under New Jersey Law, the people selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.

The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

Duty of Executor in Probate & Estate Administration

1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor;

2. Carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;

3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.

Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.

Other duties/ Executor to Do

Bring Will to Surrogate

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries (Attorney can handle)

If charity, notice to Atty General (Attorney can handle)

File notice of Probate with Surrogate (Attorney can handle)

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)

File waivers within 8 months upon receipt (Attorney can handle)

Prepare Informal Accounting

Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

Let's review the major duties involved-

In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate's assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

COMPLAINT FOR ACCOUNTING

A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.

A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $225-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.

The plaintiff can demand the following:

(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.

(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.

(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.

(5) That the executor be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate.

(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.

EXECUTOR'S COMMISSIONS

Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.

However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.

SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent

3) compel the appraisal of the home and, thereafter, the sale of the property

4) make the executor reimburse the estate for the neglect or waste of assets.

CONCLUSION

As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings.

KENNETH VERCAMMEN

Attorney at Law

Legal Resume

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500

www.centraljerseyelderlaw.com

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

2011-10-05T06:41:00.000-07:00

No undue influence in signing of Will

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

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

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

Before Judges Axelrad and Sapp-Peterson.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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

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

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

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

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

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

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

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

A-1080-10T2

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

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

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

A-1080-10T2

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

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

A-1080-10T2

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

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

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

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

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

A-1080-10T2

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

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

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

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

....

A-1080-10T2

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

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

In re 378-79

to the testator.

Although the judge found Clayton and decedent shared a "confidential relationship" in the broad sense insofar as they cohabited for more than twenty years in a marital-type relationship, he was not satisfied their relationship rose to a level of dependency or subservience under the case law so as to constitute the first prong of undue influence. See Pascale v. Pascale, 113 N.J. 20, 34 (1988) (recognizing that a confidential relationship encompasses situations where the relations between the parties "appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable") (internal quotation marks omitted); see also Haynes, supra, 87 N.J. at 176 (holding that a confidential relationship between a testator and beneficiary arises "where trust is reposed by reason of the testator's weakness or dependence or where the

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

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

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

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

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

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

A-1080-10T2

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

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

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

A-1080-10T2

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

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

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

A-1080-10T2

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

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

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

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

A-1080-10T2

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

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

Is a

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

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

.... disorderly person.

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

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

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

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

A-1080-10T2

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

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

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

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

a. A person is guilty of a disorderly

persons offense if the person knowingly

engages in the unauthorized practice of law.

b. A person is guilty of a crime of the

fourth degree if the person knowingly

engages in the unauthorized practice of law

and:

(1) Creates or reinforces a false

impression that the person is licensed to

engage in the practice of law; or

(2) Derives a benefit; or

(3) In fact causes injury to another.

c. For the purposes of this section, the

phrase "in fact" indicates strict liability.

[L. l994, c. 47, § 1.]

A-1080-10T2

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

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

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

Affirmed.

A-1080-10T2

3B:3-37 Residuary devise to two or more residuary devisees; death of one or more before testator

2011-08-14T17:44:00.001-07:00

3B:3-37 Residuary devise to two or more residuary devisees; death of one or more before testator
When a residuary devise shall be made to two or more persons by the will of any testator, unless a contrary intention shall appear by the will, the share of any residuary devisees dying before the testator and not saved from the lapse by N.J.S. 3B:3-35, or not capable of taking effect because of any other circumstance or cause, shall go to and be vested in the remaining residuary devisees, if any there be, and if more than one, then to the remaining residuary devisees in proportion to their respective shares in the residue.

IN THE MATTER OF SUSAN KEETER A-0553-10T4 May 11, 2011

2011-08-05T13:10:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0553-10T4

IN THE MATTER OF SUSAN KEETER, AN ALLEGED INCAPACITATED PERSON

Argued March 22, 2011 - Decided May 11, 2011

Before Judges Yannotti and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, P-184-10/S#224356.

Michael J. Fasano argued the cause for appellant Patricia D. Valentine (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Fasano, of counsel and on the brief).

Angela White Dalton argued the cause for respondent Susan Keeter (Zager Fuchs, P.C., attorneys; Ms. Dalton, of counsel and on the brief).

PER CURIAM

Plaintiff, Patricia Valentine, appeals from the dismissal of her complaint for guardianship of her mother, Susan Keeter, as an alleged incapacitated person. We affirm.

Plaintiff filed a complaint for guardianship for her mother based on her alleged incapacity on June 10, 2010. Keeter is age eighty-nine. In addition to Valentine, Keeter has a son, Richard.

On June 21, 2010 the court appointed Suzana Hot, Esq. as attorney for Keeter. Hot opposed the motion for guardianship at Keeter's request.

In support of her complaint for guardianship, Valentine produced sworn certifications from two doctors to support her position that Keeter was sufficiently incapacitated so as to require a full plenary hearing. An order to show cause scheduling a hearing was signed on June 10, 2010 to determine whether Keeter needed a guardian.

According to Keeter's treating physician, Dr. Jeanne Tomaino, Keeter suffers from dementia, uncontrolled diabetes, and atherosclerotic heart disease. Dr. Tomaino submitted a certification which the court characterized as a "fill in the blanks" form report. Dr. Tomaino noted that Keeter was not oriented to time or place, and she "cannot manage her medication or make informed health care decisions" and cannot manage her finances. Dr. Tomaino diagnosed Keeter with dementia, and stated that she was not capable of attending a court hearing due to "poor memory and inability to fully comprehend conversations."

Valentine also submitted a report from Dr. Jon Salisbury. Dr. Salisbury examined Keeter on May 25, 2010, and noted that Keeter could not name her medications or list her medical problems. He screened Keeter for cognitive impairment and determined that Keeter was "orientated to person, place and time" but "could not copy a shape or repeat a simple phrase." According to Dr. Salisbury, Keeter appeared "very comfortable" with Valentine managing her financial affairs. Dr. Salisbury opined that Keeter suffered from early dementia, and though "not completely incapacitated," has "significant areas of problems with cognition and her ability to handle her finances and extensive medication schedule." Dr. Salisbury suggested that as Keeter's illness was progressive, "[i]t would probably be in her best interest that [Valentine] be appointed guardian or at least [conservator]."

Keeter's court-appointed lawyer, Hot, met with Keeter twice, once at her son Richard's home in Freehold and once at Keeter's home in Englishtown. Hot described Keeter as "coherent and pleasant" and stated that Keeter explained that she had given Valentine her power of attorney and the two had handled her finances together for several years.

According to Keeter, in or around 2008, Valentine and Keeter had a falling-out after Valentine allegedly turned "mean and domineering" and siphoned funds from Keeter's accounts by writing checks in amounts significantly higher than Keeter instructed. Keeter advised Hot that she wanted to substitute Richard as her power of attorney.

Keeter conceded that she had been hospitalized for failing to take her medications properly. Though persons from the Visiting Nurse Association had been engaged at some point to oversee medication administration, Keeter dismissed them, believing she did not need their assistance. Keeter was adamant that "she did not need or want a guardian."

During the second meeting with Hot at Keeter's home in Englishtown, Keeter was again "adamant that she did not need or want a guardian." She indicated that she takes multiple pills and she relies on Richard to dispense her medicine because she did not trust Valentine to do so. Keeter could not remember the names of her medications, but claimed she remembers what they look like. Keeter rejected Hot's suggestion that she employ a visiting nurse or an aide.

Hot interviewed Richard and Valentine. According to Richard, Keeter was competent and did not need a guardian. He was "willing to be her agent and assist her in any and every way." Specifically, Richard claimed that he transports Keeter to and from doctors' appointments and other places Keeter likes to go.

Conversely, Valentine indicated to Hot that while Richard is indeed close to Keeter, her mother always "turn[s] to Valentine when she is ill." It is undisputed that Valentine handles Keeter's finances. Valentine noted her concern that Keeter spends her money so frivolously "that there will not be enough . . . to take care of [Keeter] as she begins to require more and more assistance." Valentine was also concerned that Keeter did not adequately watch her diet to control her diabetes or take her medications appropriately.

At Hot's request, Keeter was examined by Dr. Mark David Pass. According to Dr. Pass, Keeter demonstrated mild cognitive impairment. Keeter has "no deficits in attention, recall, language, praxis, or repetition" but displayed "mild visual-spatial perception difficulties." He found that Keeter had no need for assistance with activities of daily living but did require assistance driving and taking her medications.

Dr. Pass further opined that Keeter could understand her current health situation, and responded well to hypothetical medical emergencies. She was aware of her allergies to sulfa and penicillin, reported numerous hospitalizations, and knew what "all but [two] of her medicines are used for." Ultimately, Dr. Pass found that Keeter exhibited "mild signs of cognitive impairment and functional deficits" and "possible . . . manifestation of very early dementia." He claimed that she displayed "an excellent ability" to make decisions and, as a result, "has the capacity to make decisions regarding her health, financial, and family affairs" and "does not require a guardian at this time."

Based on her interviews with Keeter, Richard, Valentine, Dr. Tomaino and the reports of the three doctors, Hot included in the report a number of recommendations. Specifically, Hot noted that while the doctors disagreed over the extent of Keeter's competency, she needed "some assistance with her finances and with health care decisions." Hot further stated that it was in Keeter's "best interests to, at the very least, have a conservator appointed to handle her finances" and that, "with regard to her medical decision-making, it may be in her best interests to have a guardian of her person, but require that her requests and/or desires relative to her healthcare be considered and adhered to where appropriate." Finally, Hot stated that while her responsibility was to advocate on Keeter's behalf, and Keeter indicated her desire to oppose the guardianship action, she was not bound to advocate decisions "that are patently absurd or that pose undue risk of harm to the client."

On August 11, 2010, before the return date of the order to show cause and after the filing of Hot's report, Keeter hired private counsel to oppose the application.

On August 13, 2010, the return date of the order to show cause, Keeter, through her private counsel, waived testimony and the matter proceeded in a summary manner at the conclusion of which the court dismissed the guardianship complaint based on Hot's testimony and the affidavits submitted, having determined that plaintiff failed to meet her burden of proof by "clear and convincing evidence" that Keeter required a guardian.

On appeal, plaintiff argues the court erred by failing to hold a hearing on the issue of Keeter's incapacity. She contends the court had an independent obligation under the parens patriae doctrine to hold a full plenary hearing where there was a serious dispute over Keeter's competency. We disagree.

An action for guardianship of an alleged incapacitated individual is governed by statute and court rule. N.J.S.A. 3B:12-24 to -29; R. 4:86(1)-(8). A person is incapacitated if (s)he "is impaired by reason of mental illness or mental deficiency to the extent that [s]he lacks sufficient capacity to govern [her]self and manage [her] affairs." N.J.S.A. 3B:1-2. A complaint for a determination of incapacity and for the appointment of a guardian must include affidavits of two physicians having the qualifications set forth in N.J.S.A. 30:4-27.2(t), or one such physician and a licensed practicing psychologist as defined inN.J.S.A. 45:14B-2, stating "the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions." R. 4:86-2(b)(7). The affidavits which discuss the results of an examination of the person occurring within thirty days of the filing of the complaint must express an opinion and prognosis about the fitness of the alleged incapacitated person and her ability to govern herself or manage her affairs. R. 4:86-2(b).

A judge must determine by clear and convincing evidence that the individual satisfies the statutory definition of an incapacitated person. In re Guardianship of Macak, 377 N.J. Super. 167, 175-76 (App. Div. 2005). "Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity." R. 4:86-6(a); N.J.S.A. 3B:12-24. If no jury trial has been requested, "the court, with the consent of counsel for the alleged incapacitated person, may . . . dispense with oral testimony and rely on the affidavits submitted." R. 4:86-6(a). With or without the consent to waive testimony, "the court must still independently consider all of the evidence, including the doctors' reports and the report of the court appointed attorney, and must make findings by clear and convincing evidence as to whether the person is incapacitated." Macak, supra, 377 N.J. Super.at 175-76. A person who challenges another person's capacity to care for herself or her affairs carries the burden of proof. In re M.R., 135 N.J. 155, 169 (1994).

The rules governing guardianship matters are established to protect the alleged incapacitated persons from wrongly being declared incapacitated and having their rights taken away. In their parens patriae role, courts are the guardians of personal rights and they have a special responsibility to protect the rights of the alleged incapacitated. In re M.R., supra, 135 N.J. at 166;In re Conroy, 98 N.J. 321, 345 (1985).

So severe is the consequence of taking away constitutionally protected individual rights that courts must not permit that to occur unless there is a showing by clear and convincing evidence that the alleged incapacitated person needs to be stripped of those rights for his or her own safety and protection, and that there is no less restrictive alternative. In re M.R., supra, 135 N.J.at 166, In re Conroy, supra, 98 N.J. at 321, Macak, supra, 377 N.J. Super. 167.

Here, the trial court, acting in its parens patriae role, acted to protect Keeter from the unnecessary and unjustifiable taking of her individual rights. The court properly found plaintiff failed to establish a prima facie case of incapacity by clear and convincing evidence. Considering the three doctors' reports, the court was not satisfied the statutory requirements for incapacity had been met.

The court found that Dr. Tomaino, Keeter's treating physician, had filed a report in which she merely filled in the blanks with no narrative or reasons for determining Keeter was incapacitated and in need of a guardianship. Dr. Tomaino also stated Keeter was not capable of attending a hearing when in fact, Keeter was present in court on the return date of the order to show cause.

Dr. Salisbury's report was inconclusive, stating that Keeter suffered from early dementia, was not oriented to time and place and needed help managing her medications. Dr. Pass filed a report concluding that Keeter had the capacity to make her own decisions with regard to her finances, health and estate.

We are satisfied that there is sufficient credible evidence in the record for the trial court's finding that plaintiff failed to meet her burden of establishing by clear and convincing evidence that Keeter satisfied the statutory definition of incapacitated person. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); N.J.S.A. 3B:1-2. Thus, the court met its independent obligation under the parens patriae doctrine of protecting Keeter from wrongly being declared an incapacitated person.

II.

Plaintiff argues that the court erred as a matter of law by waiving the hearing requirement without the court appointed counsel's consent. We disagree.

The guardianship provisions in Title 3B "evoke the State's parens patriae authority[.]" In re Queiro, 374 N.J. Super. 299, 308 (App. Div. 2005). This authority is derived "from the inherent equitable authority of the sovereign to protect those persons within the state who cannot protect themselves because of an innate legal disability." In re Grady, 85 N.J. 235, 259 (1981). Such authority has been invoked "to allow decisions to be made for an incompetent that serve the incompetent's best interests, even if the person's wishes cannot be clearly established." In re Conroy, supra, 98 N.J. at 365.

In Macak, this court reversed the finding of incapacity where the alleged incapacitated person entered into a "settlement" declaring him incapacitated because "by definition" an incapacitated person is unfit to manage his or her affairs, R. 4:86-2(b)(6), and "[u]nder no circumstances should . . . be coerced into agreeing to a guardianship[,]" Macak, supra, 377 N.J. Super. at 176.

The statutory scheme underscores the importance of protecting the alleged incapacitated person's interest, by providing for the appointment of counsel. Id. at 175-176; R. 4:86-4. We have noted that "[i]t is the duty of the court-appointed attorney to advocate . . . the client's position with respect to the underlying issue of whether the client is incapacitated." Macak, supra, 377N.J. Super. at 176. While the attorney need not advocate for decisions that are "patently absurd or . . . pose an undue risk of harm to the client[,]" In re M.R., supra, 135 N.J. at 176, counsel must "serve as an independent legal advocate for the alleged incapacitated person." Macak, supra, 377 N.J. Super. at 176 n.3.

Here, the court followed the applicable statutes and rules to the letter. Hot, the court-appointed attorney filed a report pursuant to Rule 4:86-4(b) and In re M.R., advocating for her client and simultaneously expressing her reservations about Keeter's abilities. Thus, Hot adequately performed her duties "not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes." In re M.R., supra, 135 at 176. There was no negotiated "settlement" of incapacity. Quite the contrary, Keeter hired private counsel and her own expert to oppose the application.

Contrary to plaintiff's contention, we are satisfied the trial court acted within its authority by resolving the question of Keeter's capacity without an evidentiary hearing. Pursuant to Rule 4:86-6(a), "[u]nless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity." If no demand for a jury trial is made, "the court, with the consent of counsel for the alleged incapacitated person, may . . . dispense with oral testimony and rely on the affidavits submitted." Ibid. While Rule4:86-4(b) provides for the appointment of counsel, it also provides for the situation in which the alleged incapacitated person obtains private counsel, as Keeter did here.

Plaintiff's position that the court was required to obtain consent from both court-appointed counsel and private counsel before proceeding without oral testimony, is incorrect. Rule 4:86-6(a) does not require the consent of the court-appointed counsel for an alleged incapacitated person where, as in this case, the alleged incapacitated person has retained private counsel, who consents to having the court resolve the matter based on the affidavits submitted without oral testimony. The court-appointed counsel's refusal to waive testimony was not premised on reservations about Keeter's competency, but rather on her duty to advocate for Keeter's position that she was not incapacitated and because the matter was contested.

Court-appointed counsel was also present at the hearing and did not object when private counsel spoke on Keeter's behalf and stated that his client preferred to avoid a trial among her children in front of the court on the issue of her capacity. Private counsel also indicated that Keeter was willing to go forward with the voluntary conservatorship to seek a geriatric care manager or visiting nurse to assist with her medication. The court-appointed counsel conceded the imposition of a conservatorship was an acceptable arrangement.

III.

Next, plaintiff contends that the court erred by failing to consider the establishment of a limited guardianship. Again, we disagree. The consideration of the type of guardianship to be imposed is taken only after a determination that the person is incapacitated. N.J.S.A. 3B:12-24.1(a) ("[i]f the court finds that an individual is incapacitated . . . the court may appoint a general guardian . . . ")(emphasis added); N.J.S.A. 3B:12-24.1(b)("[i]f the court finds that an individual is incapacitated . . . the court may appoint a limited guardian . . . ")(emphasis added).

After considering the three doctors' reports and hearing from both court-appointed and private counsel, the court found plaintiff had failed to establish by clear and convincing evidence that Keeter was incapacitated. The court had no obligation to impose a limited guardianship where incapacity has not been established. Moreover, as the court found that Keeter was not incapacitated, it was well within her capacity to agree to a voluntary conservatorship. In Macak, supra, 377 N.J. Super. at 175 n.2 ("Where the person is not incapacitated, but he has sufficient mental or physical impairment that he requires assistance in managing his finances, he may ask the court to appoint a conservator.") (citing In re Conservatorship of Halley, 342 N.J. Super. 457, 461-63 (App. Div. 2001)).

In our view, there was no legal error in the court's framing of the issue by setting out the applicable standard after considering all of the evidence, including the doctors' reports and the report of the court-appointed attorney. The court stated it had to decide "by clear and convincing evidence" that Keeter could not fundamentally perform the duties required to manage her affairs and herself.

Dr. Pass concluded that Keeter did not need a guardian. Dr. Salisbury opined that Keeter would "probably" benefit from a guardian, but also stated that she could benefit from a conservatorship, given the progressive nature of her disease. Thus, Dr. Tomaino was the only physician who recommended guardianship, while Keeter, Dalton and Hot all agreed with the resulting conservatorship chosen by the court.

In reviewing the findings of the trial judge sitting without a jury, this court does "not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). These findings are "binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484.

Affirmed.

ESTATE OF BLANCHE T. RIORDAN A-4123-09T4 June 17, 2011

2011-08-05T12:08:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4123-09T4

IN THE MATTER OF THE ESTATE OF BLANCHE T. RIORDAN, DECEASED.

Argued March 29, 2011 - Decided June 17, 2011

Before Judges Parrillo, Skillman, and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-125-07.

James M. Nardelli argued the cause for appellants (A-4123-09)/respondents (A-4464-09) Ronald Sawczyn, Elaine Zahner, and Elizabeth Schweighardt (Parsons & Nardelli, attorneys; Mr. Nardelli, on the briefs).

Frank Holahan argued the cause for respondents (A-4123-09)/appellants (A-4464-09) Estate of Blanche T. Riordan and Executrix, Cheryl Davis (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Holahan, of counsel and on the briefs).

PER CURIAM

In these consolidated appeals, plaintiffs, Ronald Sawczyn, Elaine Zahner and Elizabeth Schweighardt, challenge a final decision of the Chancery Division, Probate Part, concluding that decedent, Blanche Riordan, had testamentary capacity when she executed her will and that the will was not the product of undue influence. Plaintiffs appeal the trial court's failure to award the full amount of their counsel fees. Defendants, Estate of Blanche T. Riordan and executrix, Cheryl L. Davis, appeal the award of any counsel fees to plaintiffs as an abuse of discretion. We affirm.

Blanche died testate on June 17, 2006 at the age of ninety-one. Blanche had no children. She was predeceased by her husband, Bill, and six of her seven siblings. She was survived by her younger brother, Anthony Chevins, and his three children, Cheryl Davis, Cynthia Chevins, and Christopher Chevins. Also surviving her were the two children of her late sister, Alberta Sawczyn: Ronald Sawczyn and Elaine Zahner. Anthony Chevins and Cynthia Chevins passed away during the pendency of these proceedings.

Blanche's will, executed on August 22, 2002, bequeathed $25,000 to her nephew, Ronald Sawczyn, and divided the remainder of her estate among her brother Anthony's three children, Cheryl, Cynthia and Christopher. The will was a document handwritten by decedent, and admitted to probate by the Monmouth County Surrogate on January 30, 2007. At that time, testamentary letters were issued to decedent's niece, Cheryl, authorizing her to administer the estate. Cheryl is a beneficiary under the will and an attorney in the State of New York. Cheryl regularly visited Blanche throughout the 1990s and started becoming very involved in Blanche’s affairs in 1997, after she began doing Blanche’s taxes, and eventually secured a power of attorney on July 30, 2002.

On May 3, 2007, plaintiffs, Ronald Sawczyn, Elaine Zahner and Elizabeth Schweighardt^¹ filed a complaint seeking to set aside Blanche's will on grounds of lack of testamentary capacity and undue influence. The matter was tried over the course of several months between October 2008 and April 2009.

According to Ronald, Blanche’s nephew, in January 1999 Blanche mailed him two pieces of paper. The first was a handwritten, undated document that set forth her testamentary intentions. In that document, Blanche appointed her brother, Anthony, as executor of her estate. She appointed Anthony's three children, Cheryl, Cynthia, and Christopher Chevins, as having power of attorney after her death. Blanche directed $150,000 to be bequeathed to Ronald, $30,000 each to Elaine Zahner and Elizabeth Schweighardt, $1,000 to an individual named Helen Nolan, and the remainder of her estate in equal shares to Anthony’s three children.

The second piece of paper, mailed by Blanche to Ronald around the same time, was a handwritten note in which she indicated that she intended to include him in her will.

I’m going to make a will for you. You were mentioned in my will to make [sure] you get something from me. Haven’t as much as I thought and everyone is trying to take you away. I love you Ronnie. Aunt Blanche.

At trial, it was established that Blanche was living independently in her house in Little Silver prior to July 2002. Janine Talbot, her good friend and long-time neighbor, described Blanche as "smart," "funny" and "extremely independent."

On July 11, 2002, Blanche fell and fractured a vertebra. Ann Coulson, Blanche’s long-time friend and former neighbor, testified that she stopped by Blanche’s home four days later and Blanche asked her for a ride to Riverview Medical Center.

The hospital admission records note that Blanche made eye contact, with "appropriate" affect and speech. Blanche's motor behavior was "cooperative" and she explained to the admitting staff that she fell because she "lost [her] balance."

Blanche was hospitalized at Riverview from July 15 to July 18, 2002. Cheryl is identified in the hospital records as Blanche’s primary caretaker. While Riverview’s records reveal some awareness and cognitive dysfunction, notations also indicate that Blanche was oriented and, despite her injury, she was ambulatory.

On July 18, 2002, Blanche was transferred from Riverview to Avante, a sub-acute rehabilitation facility in Red Bank. The Riverview transfer form indicates that Blanche was medicated, largely with pain killers, for her fractured spine.

Avante’s records indicate that, upon admission, Blanche exhibited problems with her short-term and long-term memory, expressed symptoms of sadness, depression or anxiety, and was prone to wandering. Avante’s records also reveal that Blanche was "cooperative most of the times" and "easily redirected" but was still often confused as to place and began exhibiting symptoms of paranoia.

Coulson visited Blanche during her stay at Avante. Coulson testified Blanche "looked awful" and that "[s]he had on clothes that didn’t match and she was talking to the different people there and she wasn’t making any sense." She also testified that Avante was an "awful" facility that "smelled," with "[p]eople sitting in the halls crying . . . [Blanche] wanted to leave. She wanted to go home. I don’t blame her."

Talbot and her daughter also visited Blanche at Avante. Talbot described Avante as "an absolute hell hole, there’s no other word for it" and that she "wouldn’t bring [her] dog there [much less] a family member." Talbot recalled that Blanche was "upset" and that "she just wanted to get out."

Blanche remained at Avante for eight days. Blanche’s family was involved in her discharge from Avante. A social worker noted that she spoke with Cheryl on July 22, 2002, and that they "discussed the team’s assessment, that Blanche has cognitive and safety issues and unstable mood." Cheryl agreed and related that she had already looked into twenty-four hour nursing care with a plan for Blanche to go to assisted living. The next day, Cheryl informed the social worker that the family’s plan had changed. Mary Ann Sawczyn, Ronald’s wife, would be flying in from Arizona and care for Blanche with plans to eventually bring Blanche back with her to an assisted living facility in Arizona. The social worker also met with Elaine Zahner, Blanche’s niece and Ronald’s sister, who confirmed the above discharge plan.

On July 26, 2002, Blanche was discharged into Mary Ann’s care. Blanche’s discharge diagnosis was a fractured vertebra and dementia.

Mary Ann took Blanche to her home in Little Silver. Mary Ann testified that Blanche was "agitated" and "very jittery" and that she "babbled," "repeated things" and "rambled a lot." Mary Ann stayed with Blanche at her home from July 26, 2002 to August 2, 2002.

On July 30, 2002, Cheryl visited Blanche to secure a power of attorney, which Talbot witnessed. According to Mary Ann, Cheryl went across the street to get Talbot and then instructed Mary Ann to remain outside while they executed the power of attorney. Talbot confirmed that she witnessed Cheryl's and Blanche's signatures that day. Talbot thought Blanche was "fine" at the time the power of attorney was signed, and that Blanche was

sort of relieved to know that there would be somebody to take care of her, you know, should this sort of thing happen again. I think Blanche was a little concerned about her affairs. That shook her up a little bit, but I think, in general, she was getting older and, you know, she and I had talked about this kind of thing.

Cheryl testified that the first thing Blanche told her was to "get [Mary Ann] out of here" and that Mary Ann had infuriated her by telling "everyone that they interacted with that Blanche was crazy, and not to pay any attention to her."

Mary Ann testified that Blanche later complained that Cheryl was trying to take her money. According to Mary Ann, Blanche also complained about Talbot and Talbot’s children.

At some point during Mary Ann’s visit, Coulson visited Blanche at her home. Blanche instructed Mary Ann to go to the other room because she wanted to speak with Coulson. Blanche told Coulson that "[s]he didn’t like [Mary Ann]. She didn’t want her there." Once Mary Ann left the room, Blanche gave Coulson "little pieces of paper with [telephone] numbers written on it," which she had been hiding from Mary Ann. Blanche did not tell Coulson what to do with those papers and Coulson was upset when she left, knowing that Blanche "obviously was distraught, she wanted somebody to know that something was going on."

Elizabeth Schweighardt testified she also visited Blanche when Mary Ann was there in July 2002. Elizabeth observed Blanche had lost weight and appeared very agitated, nervous and pacing the floor.

Mary Ann's husband, Ronald, arrived on August 3, 2002, staying with Blanche for one week. Ronald stated he found Blanche to be physically frail, easily agitated, and full of complaints about her au pairs and family members. She was "[n]ot angry, just . . . like I said, a little disoriented as far as, you know, what was going on."

Ronald and Mary Ann returned to Arizona on August 11, 2002. Neither of them saw Blanche again before she ultimately passed away in June 2006. According to Cheryl, Blanche did not accompany them to Arizona because she adamantly refused to go.

Talbot testified she spent significant time with Blanche throughout the summer of 2002. Talbot stated Blanche "definitely knew" who she was, as well as Talbot's daughter. Talbot described Blanche during the summer of 2002 following her stay at Avante as "shook up," "in pain" and "almost like she was shocked by what had happened to her." Talbot stated "Blanche never wanted to leave her house."

During this time, Talbot claims to have had a conversation with Blanche about Blanche’s testamentary intentions. Talbot stated that Blanche "felt comfortable" with Cheryl being the person she wanted to have in charge of her affairs and that "she really didn’t care for Mary Ann." Blanche wondered whether her brother, Anthony, should be in charge of her affairs instead of Cheryl, because she "absolutely adored him," "really looked up to him as her brother and knew that he would take care of her," but also realized that "[Anthony] was getting on in years, as well, and he had things to take care of." In terms of the specifics of her will, Talbot testified that Blanche was "very vague," but said that

she wanted to make sure she took care of . . . Cheryl, Cindy and Chris . . . and she did mention Ryan [Ron?] to me. But not in great lengths or anything. She didn’t discuss anything about what was in her will . . . never asked her. . . . we didn’t talk about it.

On August 22, 2002, Anthony, Cheryl and Cynthia visited Blanche at her Little Silver home. According to Cheryl, the purpose was to determine whether Blanche was capable of living on her own or whether she required a nursing home. Cheryl stated that the other purpose for the visit was because Blanche "wanted to know what she should do with her money," meaning her investment portfolio. Cheryl testified that following Blanche’s return home from Avante, they had discussed her investments over the phone and Cheryl had recommended that Blanche consult her financial advisor at her bank.

Cheryl testified Anthony took Blanche into the dining room during this visit, where they remained for approximately forty-five minutes while Cheryl and her sister, Cynthia, stayed in the living room. When Anthony came out, he stated Blanche had written a will. Cheryl stated Anthony asked her, "Did I want to read it?" She said, "No." Cheryl maintains she had no idea a will was going to be prepared on that date.

The will is handwritten on a pre-printed legal form and appoints Cheryl as executrix of her estate. The substantive provisions, written in Blanche’s hand, provide:

I Blanche Riordan be [sic] of sound body to hereby leave the major part of my estate split evenly between Cheryl Davis, Christopher Chevins and Cynthia Chevins – my nieces and nephews. Also would like to leave to nephew Sawczyn the around [sic] of 25 thousand/25000.00.

Next, Blanche, Anthony, Cheryl and Cynthia drove in Cynthia’s car to Sovereign Bank in Red Bank, where Blanche did her banking to have her will witnessed. According to Cheryl, Blanche was not confused and knew what she was doing.

She was very happy that we were all there to help her attend to her affairs. I think she felt that she had family support, and she was very happy to hear that we weren’t putting her in a nursing home, and . . . other than that, she was just Blanche, as usual.

Cheryl and Cynthia witnessed the will and Loretta Pepa, a bank representative, notarized it. Pepa, who had known Blanche for a couple of years, testified that she remembered Blanche’s will because it was handwritten. Pepa stated that she asked Blanche if the instrument was her will and Blanche replied it was, that she had written it out, and asked Pepa to notarize her signature. Pepa confirmed that Cheryl, Cynthia and a gentleman were also present. When asked if there was any "doubt in her mind that [Blanche] knew the [document] was her will," Pepa replied there was not. Similarly, Pepa stated that there was nothing in Blanche’s demeanor, appearance or speech that led Pepa to be concerned that Blanche might not know what she was doing. Cynthia testified she never saw the will until more than six months after Blanche’s death.

That winter, 2002-2003, Blanche went by herself to Florida, to stay in her condo in Clearwater for roughly six weeks. Talbot testified that she had no concerns about Blanche traveling to Florida or being able to care for herself that winter.

Cheryl, who spoke to Blanche once a week while in Florida, stated that Blanche did not have any caretakers there and that she did her own grocery shopping and errands. Following her return from Florida, Cheryl stated that Blanche appeared "more frail because of her back injury," but that she was still involved in her own affairs, asking Cheryl about bills and house repairs. Copies of checks in the record reveal that Blanche wrote many of her own checks from August 2002 through the end of December 2002.

Blanche again returned to Florida for one month in the winter of 2003-2004. According to Talbot, Blanche was "pretty good" in the fall of 2003 but her health began to decline markedly upon her return from Florida. Cheryl confirmed she began to notice deterioration in Blanche’s mental health in late 2003.

Coulson, through her videotaped deposition, testified that she first noticed a decline in Blanche’s health in early 2003. She also testified that there was never an occasion when Blanche failed to recognize her or her voice, or failed to call her by name.

Blanche’s condition further deteriorated in 2004. In July 2004, Cheryl and Anthony procured two letter opinions from physicians, who stated that Blanche had Alzheimer’s Disease and was not competent to care for herself. Blanche was moved to a nursing home in spring of 2005 where she died in June 2006.

At trial, plaintiffs’ expert witness, Robert L. Berkowitz, M.D., who was qualified in psychiatry, testified as to Blanche’s mental condition and testamentary capacity when she executed her will on August 22, 2002. Dr. Berkowitz based his opinion on his review of the Riverview and Avante records, as well as Blanche’s will. He opined that Blanche suffered from dementia at the time of her fall in July 2002 and that her condition "was fairly advanced to the point where it did not appear [she] would be able to manage living alone independently in a safe and healthy manner." He concluded that Blanche was in a somewhat weakened state when she executed her will and may have been subject to undue influence, but was unable to offer an opinion that she was incapable of making a will.

The court set forth its decision on the record on September 29 and 30, 2009 and entered an order for judgment consistent with those rulings on September 30, 2009.

On October 30, 2009, plaintiffs filed a motion for counsel fees pursuant to R. 4:42-9(a)(3). On April 7, 2010 the court set forth, on the record, its decision to award counsel fees to plaintiff's counsel, though not the full amount, after it made appropriate calculations. On April 30, 2010, the court awarded plaintiffs $55,000 in counsel fees. These appeals followed.

Plaintiffs argue the trial court’s finding that Blanche possessed the requisite testamentary capacity to execute a will on August 22, 2002 was not supported by sufficient, credible evidence and rather, "was so far wide of the mark and contrary to competent evidence in the record as to amount to a manifest denial of justice." We disagree.

"The 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 opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432(1993) (quoting Gellert v. Livingston, 5 N.J. 65,78 (1950)). A trial court's findings of fact and credibility "should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence as to offend the interests of justice." Id. at 524. As the reviewing court, we "should exercise . . . original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

As a general principle, New Jersey law requires only "a very low degree of mental capacity" to execute a will. Liebl,supra, 260 N.J. Super. at 524.

[T]he gauge of testamentary capacity has been stated to be whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of these factors to the others, and the distribution that is made by the will.

[Gellert, supra, 5 N.J. at 73.]

Testamentary capacity is tested at the time of execution of the will. Id. at 76.

In any attack upon the validity of a will, there is a legal presumption that the testator was of sound mind and competent when he executed the will. Haynes v. First Nat’l Bank of N.J., 87 N.J. 163, 175-76 (1981); In re Will of Davis, 14 N.J. 166, 169 (1953). This presumption can only be overcome by clear and convincing evidence. In re Estate of Coffin, 103 N.J. Super. 1, 3, (App. Div. 1968). The burden of establishing lack of testamentary capacity falls upon the party who contests the will being offered for probate. Ibid.

Here, the trial court found that Blanche suffered from "a dementia condition of undefined specific proportions in the summer of 2002." Despite this condition, the court concluded Blanche possessed the requisite testamentary capacity when she executed her will on August 22, 2002. The court observed that, while the Riverview and Avante records indicate that Blanche sometimes suffered from symptoms of dementia, they also reveal that Blanche was often lucid and clear in her thoughts and behavior. There are regular notations that Blanche was oriented, her affect appropriate and that, despite her injury, she was ambulatory. The court noted that Blanche was admitted to Riverview for a fractured vertebra, not symptoms of dementia, and there are few actual references in the medical records to "some sort of dementia that would cause one to think she was substantially impacted by the condition that she undoubtedly [would be] dealing with as she gets older."

The court placed great weight on Dr. Berkowitz's inability to opine as to the key issue of whether Blanche was mentally capable of making a will on August 22, 2002. While Dr. Berkowitz testified that it was "very likely" that the dementia he believed Blanche suffered from would prevent her from being able to make a will, he "couldn’t say for sure." Dr. Berkowitz’s inability to offer a conclusive opinion on incapacity was dispositive when the court stated: "[a]nd that essentially, in my mind, resolves the capacity issue."

In concluding that Blanche possessed testamentary capacity, the court specifically credited the testimony of Talbot and Coulson, who described Avante as a "hell hole" and Blanche as extremely upset and traumatized from her experience there. The court reasoned that Blanche’s unusual behavior at Avante could be attributed to pain medications or to her reaction to being confined at Avante. The testimony of Talbot and Coulson supported the conclusion that Blanche was fiercely independent, that she wished to remain living alone in her home and that her mental state improved after her discharge from Avante. The court also noted Blanche was living on her own when she executed her will and for more than a year thereafter, going to Florida by herself the next two winters.

Evaluating the evidence in the aggregate, the court concluded that plaintiffs did not satisfy their heavy burden of proving, by clear and convincing evidence, that Blanche lacked testamentary capacity when she executed her will on August 22, 2002.

We are satisfied there is sufficient competent and reasonably credible evidence in the record to support the trial court's finding that Blanche possessed the requisite testamentary capacity to execute a will on August 22, 2002. Liebl, supra, 260 N.J. Super. at 529.

II.

Plaintiffs contend that the trial court's factual findings and legal conclusions with respect to the issue of undue influence on Blanche by Cheryl or Anthony are unsupported by the credible evidence adduced at trial and warrant reversal.

What constitutes undue influence sufficient to invalidate a will is a question of law. But whether a will was procured by undue influence is a question of fact for the court, as is the truth or credibility of evidence introduced on such issue and the weight to be given thereto.

[In re Skewis’ Will, 2 N.J. Super. 114, 118 (App. Div. 1949).]

A will which on its face appears to be validly executed, can be overturned if it is tainted by "undue influence." Haynes,supra, 87 N.J. at 176. Undue influence has been defined as:

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 lieu thereof.

[In re Estate of Stockdale, 196 N.J. 275, 302-03 (2008).]

"It denotes conduct that causes the testator to accept the 'domination and influence of another' rather than follow his or her own wishes." Id. at 303 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).

Two elements are required to raise a presumption of undue influence. First, there must be a "confidential relationship" between the testator and the beneficiary. Stockdale, supra, 196 N.J. at 303l; see Haynes, supra, 87 N.J. at 176. Second, the presence of "additional 'suspicious' circumstances" in combination with such a confidential relationship must exist. Stockdale,supra, 196 N.J. at 303; see Haynes, supra, 87 N.J. at 176. Such circumstances "need only be slight." Stockdale, supra, 196 N.J.at 303 (citing In re Rittenhouse's Will, 19 N.J. 376, 379 (1955)).

Under normal circumstances, once a presumption of undue influence has been established and the burden of proof is shifted to the proponent of the will, the presumption may be overcome by a preponderance of the evidence. Haynes, supra, 87N.J. at 177-78; In re Catelli’s Will, 361 N.J. Super. 478, 487 (App. Div. 2003). If, however, "the presumption arises from 'a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary as well as the attorney,' the presumption must instead be rebutted by clear and convincing evidence." Stockdale,supra, 196 N.J. at 303 (quoting Haynes, supra, 87 N.J. at 183).

Plaintiffs argue the court mistakenly found that defendants had overcome the presumption of undue influence because the court held defendants to a lower standard of proof -- "preponderance of the evidence" -- instead of the "clear and convincing" burden that should have governed. We disagree. The trial court determined that as a result of Cheryl having Blanche's power of attorney, there was a confidential relationship and Cheryl was in a position to exert undue influence. Though Cheryl was an attorney in New York, she did not act as Blanche's attorney in the preparation of Blanche's handwritten will executed in her Little Silver home. Thus, the enhanced burden did not apply to defendants. Notwithstanding the confidential relationship, the court found no evidence that Cheryl, in any way, overpowered the will of Blanche. The court noted the testimony of several witnesses that "Cheryl was more uninvolved than involved" with Blanche on a daily basis. Blanche was not dependent on Cheryl nor did Cheryl live with Blanche, allowing Cheryl to control Blanche's day-to-day existence. Next, the court found there were "very slight" suspicious circumstances causing the burden to shift to the defendants. The court stated:

[a]nd the slight circumstances I would find would be that the will was drawn in the presence of Cheryl Davis, although not directly, she was in the other room, but her father was in the room with his sister, Mrs. Riordan. It was drawn at a time when she was not in good health.

The court concluded the defendants had met their burden to overcome the presumption of undue influence by a preponderance of the credible evidence. These proofs included the testimony of the notary, Pepa, and Talbot, the handwritten nature of the will, lack of a prior will, the fact no changes were made to the will in the two years between its execution and Blanche's incapacity, and that Blanche "even mentioned one of the parties challenging the will." We are satisfied the record supports the trial court's finding that there was no proof, "other than innuendo and insinuation," of any purported undue influence by Cheryl.

We recognize the court did not expound its findings addressing the possibility that undue influence was exerted upon Blanche by her brother, Anthony, for the benefit of his children. Nonetheless, the lack of any such undue influence was implicit in the court's overall determination and in any event, was supported by sufficient credible evidence in the record. To be sure the court recognized Anthony's presence in the room when the will was drawn and that Anthony came to Blanche's home with his three children who were named as beneficiaries. Notwithstanding Blanche's admiration for her brother, the testimony of Talbot demonstrates Blanche had declined to put Anthony in charge of her affairs because Blanche recognized Anthony was getting up in years and was busy with his own life. According to Talbot, Blanche was comfortable with Cheryl as the holder of her power of attorney and looked to Cheryl for advice on her finances and investments. There was no evidence that Blanche sought financial advice from Anthony nor was he involved with Blanche on a day-to-day basis allowing him to exert control. The court stated: "There is no attorney involved here. And certainly that is a fact which is worth noting. It wasn't as if the testator's brother and his children took her to New York and had this accomplished out of her home, but it occurred in her home." After a careful review of the record, we are satisfied that even if the burden shifts, as plaintiffs contend, there is sufficient credible evidence in the record that the burden was carried and any influence exerted by Anthony was not undue.

III.

The defendants, as proponents of the will, argue the court abused its discretion in that plaintiffs were not entitled to any fee award at all. The plaintiffs, as contestants of the will, appeal their $55,000 attorney fee award, asserting it was insufficient under Rule 4:42-9(a)(3). We reject both challenges.

The decision to award attorneys' fees falls within the discretion of the trial judge and, accordingly, is reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). If the trial judge makes a discretionary decision, but acts under a misconception of the applicable law, we need not afford the usual deference. The court instead must adjudicate the controversy in the light of the applicable law in order to avoid a manifest denial of justice. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960).

New Jersey has a strong public policy against the shifting of costs. In re Niles Trust, 176 N.J. 282, 293 (2003). Our court has embraced this policy by adopting the "American Rule," which requires that every litigant bear his or her own attorney's fees and costs. Despite this general policy, exceptions to the American Rule have been carved out for specific situations. See In re Estate of Vayda, 184 N.J 115, 120-23 (2005). Among these exceptions is that embodied in R. 4:42-9(a)(3), which provides that a court may allow counsel fees to be paid from the estate in a will contest:

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except . . .

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. 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.

[R. 4:42-9(a)(3) (emphasis added).]

In such instances, an affidavit of services is required. R. 4:42-9(b).

To satisfy the "reasonable cause" requirement under Rule 4:42-9(a)(3), those petitioning for an award of counsel fees must provide the court with "a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process." In re Will of Caruso, 18 N.J. 26, 35 (1955). "That being said, '[e]xcept in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute.'" In re Will & Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).

The defendants objected to the fundamental notion of awarding fees, alleging the plaintiffs had made no showing of undue influence and, therefore, had no reasonable basis to challenge the will. The defendants also noted the strong public policy against fee shifting.

We perceive no abuse of discretion in the trial court's award of counsel fees. The record supports both the award and the basis upon which it is founded. The court distinguished between the legal standard governing whether a challenge to a will should be upheld and the more liberal standard governing a counsel fee award in probate cases of a "reasonable basis" for bringing the action. The court found there was a reasonable basis given the testator's behavior prior to her execution of the will and Cheryl having power of attorney and being in a position of influence, though not sufficient to set aside the will. The court determined the challenge was reasonable.

Although the court could have provided a more detailed explanation as to how it arrived at the award of $55,000, the court noted a number of factors which it considered, reasoning the fee should be substantially reduced to achieve an equitable balance given the facts and outcome. In analyzing the issue, the court considered the size of the estate (approximately $900,000), the time expended in prosecuting the action of almost three years with the trial being conducted over five days and the fact that the will contest was unsuccessful. It also considered the fact that the plaintiffs' counsel assumed the risk and knew the potential for the case being lost, where no contingency fee would be paid. We discern no clear abuse of discretion in the trial court awarding a partial award of fees to plaintiffs' counsel.

Affirmed.

1 Elizabeth Schweighardt, originally named co-plaintiff, is decedent's niece by marriage. She was informally dismissed from these proceedings as she was not a legal heir. Despite the dismissal, Elizabeth Schweighardt continued to be named as an appellant herein.

IN THE MATTER OF THE ESTATE OF TROCOLOR A-5005-09T3 May 26, 2011

2011-07-26T13:47:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5005-09T3

IN THE MATTER OF THE ESTATE OF

MILDRED B. TROCOLOR,

Deceased.

Argued May 9, 2011 – Decided May 26, 2011

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-513-08.

Frank Holahan argued the cause for appellants Robert George Trocolor, II and Genevieve Trocolor (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Holahan, of counsel and on the brief).

William T. Smith argued the cause for respondent Daryl Wallace (Hook, Smith & Meyer, attorneys; Mr. Smith, on the brief).

PER CURIAM

Defendants Robert Trocolor, II, and his wife Genevieve Trocolor appeal from two May 11, 2010 orders and a May 17, 2010 order concerning the Estate of Mildred Trocolor. We affirm, substantially for the reasons stated in the opinion of Judge Robert P. Contillo dated March 3, 2010.

The facts are set forth in Judge Contillo's comprehensive opinion and need not be repeated here in the same level of detail. In summary, this case was a dispute between plaintiff Daryl Wallace and her brother Robert Trocolor, II, who were co-executors of the estate of their mother, Mildred Trocolor. In her complaint, Daryl^¹ alleged that while Mildred was alive, Robert and Genevieve (defendants) misappropriated substantial sums of money from three reverse mortgages on Mildred’s house. In their counterclaim, defendants alleged that Daryl misappropriated money from Mildred. Prior to the trial, the judge put both sides on notice that if either side proved that the other side looted the mother’s estate and defrauded her, he might, as an equitable remedy, bar the guilty party from inheriting from the estate. Neither party objected.

After a three-day bench trial in which all parties testified, Judge Contillo found Daryl to be a completely believable witness and concluded that she did not misappropriate any money. He credited Daryl's testimony that her mother had lent her relatively modest sums of money that Daryl either repaid or that Mildred forgave in a gift letter that the judge found to be authentic.

Robert testified that three reverse mortgages were placed on Mildred's house because she was running out of money to support herself. Yet he also admitted taking at least $200,000 from the proceeds of those mortgages to pay for improvements to his own house and his children’s college tuition. He claimed that Mildred knew about, and approved of, those expenditures, and he produced a purported gift letter from Mildred which he claimed authorized him to take her money to spend as he saw fit. Genevieve testified that she was present when Mildred signed the gift letter. Daryl produced expert testimony that Robert’s gift letter was a forgery.

For reasons he explained in considerable detail, Judge Contillo found that Robert was a completely incredible witness. Based on the expert’s testimony and his own comparison of Mildred’s alleged signature on Robert’s gift letter with exemplars of her signature, Judge Contillo determined that the signature was a forgery. The judge found that, without Mildred’s knowledge or consent, Robert took approximately $240,000 of her money and used it to improve his own house and pay his children's college tuition. He also found that, as a result of Robert’s misconduct, the equity in Mildred’s house was drained, and she was left without assets at her death. As the judge stated:

What I doubt, and affirmatively disbelieve, and have no credible evidence of, is that Mildred ever agreed to have her lifeline funds - the proceeds of any of the 3 reverse mortgages - used to reconstruct and improve Robert's home - or to finance Robert's children's education. Even Robert's wife did not know that her home improvements - and her children's educations - were being financed by Mildred, or, more accurately, at Mildred's expense, and to Mildred's detriment. And, I find, Mildred clearly did not know, or approve, of the depletion of her assets for these or any other purposes.

In addition to determining that Robert must repay the approximately $240,000 that he stole from his mother, the court awarded punitive damages, finding that he "helped himself, wrongfully, secretly, recklessly and actionably, to the mother's monies, before she died." In the March 3 decision, the judge directed plaintiff’s counsel to submit a form of judgment under the five day rule. Plaintiffs' attorney sent two proposed orders to his adversary and the court, by letter dated May 4, 2010.

Based on his factual findings, the judge signed an order on May 11, 2010, removing Robert as co-executor, and entering judgment against Robert in favor of the Estate and Daryl Wallace for approximately $260,000. That sum included the amount Robert misappropriated, plus interest and $1000 in punitive damages. The judge also authorized Daryl, as executrix, to attempt to collect those sums, and provided that Robert would have no claim against Mildred’s estate as a beneficiary, i.e., he would not be entitled to inherit any of the stolen money. The May 11 order also awarded counsel fees against Robert in the amount of about $89,000.

While the judge disbelieved Genevieve’s testimony about the gift letter, he did not find that Daryl proved that Genevieve actually knew that Robert was stealing money from his mother to pay for the home improvements and the children’s tuition. Therefore, he declined to enter judgment against Genevieve for the misappropriated sums.

However, the judge found that Robert used "at least $75,405" of the misappropriated money to improve the home that he and Genevieve owned in Oakland and, to that extent, Genevieve benefited from the stolen funds. The judge did not order that the Oakland house be sold to pay the judgment against Robert. However, in a second order dated May 11, 2010, he created a $75,000 constructive trust in favor of Daryl, "in that portion of the equity in the property . . . owned by Genevieve Trocolor, individually, or Genevieve Trocolor and Robert Trocolor, jointly."

In a letter dated May 12, 2010, defendants’ counsel objected to the forms of the two orders, which the judge had already signed. The May 12 letter objected to the amount of the attorney fee award in the judgment against Robert, and objected to language in the constructive trust order finding that Robert "embezzled" from and defrauded Mildred. Notably, the May 12 letter did not object to the creation of the constructive trust or to the portion of the other May 11 order prohibiting Robert from inheriting from Mildred’s estate. In response to the May 12 letter, the judge did not modify the language about Robert’s wrongdoing. However, in an amended judgment dated May 17, 2007, the judge decreased the counsel fee award against Robert by about $20,000.

On this appeal, defendants raise the following issues:

POINT I

The trial court erred in disinheriting Robert and in imposing a constructive trust against Genevieve.

POINT II

The trial court erred in accepting respondent's "gift letter" and in determining the disparity of decedent's funds taken by appellant and respondent.

POINT III

The matter should be remanded to the trial court to consider respondent's accounting and to modify the relief granted.

Our review of the trial judge’s decision is limited. We will not disturb the judge’s determination so long as his findings are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to the judge’s credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). However, we owe no deference to the judge’s legal conclusions, Manalapan Realty v. Twp. Comm. of Manalapan 140 N.J. 366, 378 (1995).

On this appeal, defendants agree that the judge properly required both sides to prove by clear and convincing evidence their claims that their mother made gifts to them. See In re Dodge, 50 N.J. 192, 227 (1967). However, citing no supporting case law, defendants argue that the remedies the judge imposed were "an abuse of discretion" because his factual findings were incorrect.

Having reviewed the record ourselves, we perceive no basis to disturb the judge’s factual findings. The judge had the opportunity, which we did not, to hear and see the witnesses testify and to determine their credibility. See Locurto, supra, 157N.J. at 471-72. We find no support for defendants’ contention that the judge’s factual findings were based on "an inappropriate animus toward Robert." The judge conducted the trial with scrupulous fairness. We also find no basis to interfere with the judge’s determination that Daryl, who testified in a clear and straightforward manner, was a believable witness. Further, Daryl produced a detailed accounting of Mildred’s funds, which defendants did not contest except in minor respects.^²

The judge’s pointed and detailed findings concerning Robert’s lack of credibility are amply supported by the record. After reading the transcript, we agree with the judge that Robert’s testimony lacked the ring of truth. In the last years of her life, Robert handled his mother’s finances and knew she was running out of income. He admitted that his mother fervently wished to remain in her home, but lacked the financial resources to do so without taking out reverse mortgages on her house. He testified that the mortgages were taken out because Mildred needed money. Yet, at the same time, he admitted that as soon as those mortgages were taken out, he helped himself to large chunks of the proceeds to pay for improvements to his own house and to pay his children’s college tuition.

Robert claimed that his mother signed a gift letter authorizing him to use the money as he saw fit. Yet, plaintiff presented undisputed expert testimony that the signature on that gift letter was a forgery. We agree with Judge Contillo that the signature on that letter does not match the numerous examples of Mildred’s signature in the record. By contrast, as the expert testified, the signature on an earlier gift letter to Daryl matches the known examples of Mildred’s signature. That letter forgave relatively small debts Daryl owed her mother, as opposed to the enormous amounts Robert took from Mildred’s assets.

Defendants’ remaining arguments, concerning the remedies the judge imposed, were not raised in the trial court and were not properly supported on this appeal with any citations to legal authority. We therefore decline to address them. See Paragon Contrs., Inc. v. Peachtree Condo. Ass'n., 202 N.J. 415, 424 n.4 (2010); N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010); Nieder v. Royal Indem. Ins Co., 62 N.J. 229, 234 (1973).

Affirmed.

1 We refer to the family members by their first names to avoid confusion.

2 Daryl was forced to produce the accounting by obtaining original records from Mildred’s banks and other financial institutions, because Robert, who had Mildred’s power of attorney and handled her finances while she was alive, claimed that he had "destroyed" most of her financial records. By destroying the records concerning the reverse mortgages and the amounts he took, Robert also created uncertainty as to the assets that would have been in Mildred’s estate but for his wrongdoing. Further, his misappropriations resulted in Mildred incurring far more in mortgage debt — both principal and interest — than she would have incurred had the money been used exclusively for her support. As a result of this mounting debt, there was no equity left in Mildred's house by the time this case went to trial. Robert testified that he expected the mortgage company to take the house through foreclosure.