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In re Probate of

Decided: December 1, 1981.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF FANNIE LISS, DECEASED


Coburn, J.s.c.

Coburn

[184 NJSuper Page 186] This matter is before the court on the application of successors to the estate of Fannie Liss for an order directing the executor to abide by the terms of a written agreement altering their interests under her alleged will. Certain of the successors are charitable associations, consequently the court ordered service of all relevant papers to be made on the Attorney General who has

affirmed that the settlement serves the public interest. The only objector is the executor of the Fannie Liss Estate. Since his position cannot be justified, the court will approve the agreement and order the executor to abide by its terms.

Numerous proceedings have occurred in this complex litigation. For present purposes, no more than a brief outline is in order. However, it is appropriate that reference be made to the related litigation pending before this court arising from the probate of the estate of Fannie Liss' husband Morris Liss because a settlement of this matter will also bring that case to a conclusion.

Morris Liss died in 1966, survived by his wife and their two children Sylvia Farber and Irving Liss. He left an estate worth approximately $500,000. Under his will Fannie Liss was to receive during her life the income of the residuary estate. She was also granted a power of appointment with respect to one-half of the residuary estate.

Fannie Liss died in 1980 at the age of 80, and on June 27, 1980 her executor obtained an ex parte judgment of the Hudson County Surrogate's Court admitting to probate a document, which he had drafted, purporting to be her last will. The estate consists primarily, if not entirely, of assets originating from the trusts established by her husband's will. The alleged will was executed when Fannie Liss was 76 years old; it provides extremely minor bequests to family members, with the bulk of the estate going to 11 charities.

On September 26, 1980, within the applicable three-month limitation of R. 4:80-7, attorneys for Sylvia Farber filed a complaint in this court challenging the validity of the Fannie Liss will on numerous grounds, including lack of testamentary capacity. In support of the complaint Sylvia Farber certified that during the 18 years prior to her death Fannie Liss resided with the Farber family; that before she executed the will her physical and mental condition had severely deteriorated; that she could not read English and for the most part communicated

in Yiddish; that throughout her life all financial matters were handled by her husband and after his death by Sylvia Farber, and that she had no understanding of the size of her estate.

On October 17, 1980, a date beyond the three months allowed by the rule, attorneys for Sylvia Farber obtained in the same action an order to show cause further attacking the June 27, 1980 judgment of the Hudson County Surrogate. On December 18, 1980 the judge before whom the matter was then pending inscribed this legend on the face of the show cause order: "N.B. Complaint on order to show cause dismissed for lack of prosecution without prejudice and without costs." (Emphasis supplied.) Nothing was written on the complaint and the executor failed to prepare a formal order. At the time settlement discussions were ongoing and the judge, who was about to retire, had informally expressed to counsel his desire to "clear his calendar."

This court first became involved in these related actions on May 22, 1981, when trustees of the Morris Liss estate, an attorney and Sylvia Farber, asked for approval of their proposed final account. The executor of the Fannie Liss estate, appearing in opposition, filed exceptions to the account and sought to reopen two prior accounts. In a written opinion this court ruled that the executor had made a sufficient showing to permit discovery with respect to the prior accounts, but that a final determination on whether those accounts should be modified would have to follow a plenary hearing.

Thereafter an amended complaint and order to show cause was filed on behalf of Sylvia Farber and others in the Fannie Liss estate. The executor's answer acknowledged his possession of and claim on behalf of the estate to over $100,000 in joint bank accounts which list either Sylvia Farber or her children as beneficiaries of Fannie Liss. On September 18, 1981 the executor moved to dismiss the challenge to the judgment admitting Fannie Liss' ...


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