On appeal from Bergen County Court, Probate Division.
Halpern, Larner and King. Halpern, P.J.A.D. (dissenting).
[165 NJSuper Page 3] This is an appeal from a judgment determining that the will of testatrix Eva Churik is valid and should have been admitted to probate. The essence of the trial judge's conclusion was that the contestant, Saint Vladimir's Orthodox Theological Seminary, had failed to establish its claim that the will was the product of undue influence.
The determination of a will contest founded on an allegation of undue influence is characteristically dependent upon an evaluation of facts and inferences therefrom by the judge who sees and hears the witnesses and is in the best position to weigh the evidence. The trial judge herein performed this function and, after a consideration of the credibility of the witnesses and the weight of disputed facts and inferences, reached the conclusion that there was no evidence that the beneficiaries under the will exercised any form of undue influence upon decedent which destroyed her free will and impelled her to make a disposition in a manner which she did not wish to do. See In re Davis , 14 N.J. 166 (1953); Gellert v. Livingston , 5 N.J. 65, 73 (1950).
We have carefully canvassed the record and are satisfied that the determination below could reasonably have been reached on sufficient credible evidence in the record. As a reviewing court it is beyond the ambit of our power and function to apply an independent factfinding process in order to reach a conclusion which may be more in harmony with our viewpoint. State v. Johnson , 42 N.J. 146, 162 (1964). Our task is complete if we find sufficient credible evidence in support of the trial court's decision, unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid. We do not conclude that the finding below is clearly a mistaken one or plainly unwarranted and therefore do not consider it legally appropriate to disturb it.
The contestant complains that the trial judge failed in his findings to afford it the presumption of undue influence arising out of the alleged confidential relationship between the decedent and her niece-beneficiary. See In re Rittenhouse , 19 N.J. 376 (1955). It is doubtful whether the facts herein would justify the presumption urged by the contestant. The proofs demonstrate that the niece-beneficiary was reconciled with testatrix in 1973 after an estrangement
of over 20 years. While the niece undertook to make arrangements for testatrix to be moved from a hospital to a nursing home, took steps to find a new lawyer at decedent's request and to secure information as to the assets of the estate from the former lawyer, and had expressed distrust of the former lawyer who had a power of attorney from decedent and was a beneficiary and executor under her earlier will, nevertheless there is no evidence that the niece was a confidant of decedent or had a dominant position in their relationship. See Stroming v. Stroming , 12 N.J. Super. 217, 224 (App. Div. 1951); In re Fulper , 99 N.J. Eq. 293 (Prerog. 1926); Dill v. Dill , 118 N.J. Eq. 374 (Ch. 1935), aff'd 119 N.J. Eq. 467 (E. & A. 1936).
Under such circumstances the presumption urged by the contestant would not apply.*fn1
However, even if we were to assume that there was the requisite confidential relationship triggering the presumption, there is substantial evidence to rebut the same and to negate the charge that undue influence was exerted upon decedent so as to overcome her will. See the dissenting opinion of Judge Morgan in In re Estate of Lehner , 142 N.J. Super. 56, 67-69 (App. Div. 1975), which was adopted by the Supreme Court in 70 N.J. 434 (1976).
It is undisputed that decedent was an individual with a strong mind and will and in full control of her mental faculties at the time she executed the instrument in question. There is no question of her competency or compliance with the statutory prerequisites for the execution of a will which was prepared by an independent attorney who conferred with decedent on two occasions before execution.
It is also significant that the new will did not create an unnatural bequest. It substituted a close blood relative
and her husband for the contestant and related minor beneficiaries who were included in the prior will. Although there was a long estrangement between the niece's family and decedent prior to 1973, the care and attention given by this niece in contrast to the lack of such care and attention by the prior related beneficiaries during the last year of her aunt's life renders it quite normal and natural for decedent to forgive the past and prefer her to the former beneficiaries. Manifestly a testator is not locked into beneficiaries who have been named in prior wills. She is free to leave the estate to anyone she pleases so long as it is accomplished in accordance with law and without coercion or undue influence which overcomes her will.
Whatever may have been the motives which inspired the niece to lavish this attention on her aunt during this period, or whether such attention may have influenced decedent to change her will, is not determinative. As pointed out by the Supreme Court in In re Hale's Will , 21 N.J. 284 (1956):
[M]otive and opportunity to exercise undue influence were not sufficient in themselves to invalidate a testament, and short of it appearing that the motive was pursued and opportunity was employed so as to destroy the freedom of will and judgment of the testator, the document purporting to be his last will must be upheld, In re Neuman's Estate , 133 N.J. Eq. 532 (E. & A. 1943); In re Dyer's Will , 135 N.J. Eq. 58, 61 (E. & A. 1944); In re Filo's Estate , 9 N.J. Super. 146 (App. Div. 1950). [at 288]
Finally, we have considered appellant's argument relating to the limitation of examination of Pauline Snyder as to decedent's assets prior to the execution of the will. We find this contention to be without merit. The trial judge's rulings were appropriately within ...