On appeal from the Superior Court, Law Division, Union County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Greenberg, J.A.D.
[190 NJSuper Page 54] This case is an appeal from the Superior Court, Law Division, Probate Part, Union County. Decedent, Charles T. Karamus, Jr., and appellant, Joyce Karamus, were married November 7, 1964. One child, Lisa, still an infant, was born of the marriage.*fn1 On March 22, 1974 decedent and Joyce Karamus were divorced. On June 9, 1978 decedent purportedly executed a will leaving his entire estate to his mother, Anna Karamus, and his brother, John Karamus, and appointing John Karamus executor of the
will.*fn2 No mention was made of Joyce Karamus or Lisa in the will. Decedent died August 11, 1978. On August 22, 1978 the will was admitted to probate in common form in the Union County surrogate's court. Inasmuch as Joyce Karamus and Lisa were not beneficiaries under the will they were not given notice of the probate of the will and were not sent copies as required by R. 4:80-8 for beneficiaries. See In re Green, 175 N.J. Super. 595 (App.Div.1980).
Nevertheless Lisa did receive money by reason of her father's death. The decedent maintained a savings account in his name as trustee for her in the Bowery Savings Bank in New York City. Lisa received $4,627.30 from this account which passed outside of the estate. She was also the beneficiary of a life insurance policy on decedent's life. There seems to have been a problem in the collection of the proceeds of the policy for Lisa. Thus on October 17, 1979 Joyce Karamus, represented by an attorney in the Superior Court, Chancery Division, Union County, in the matrimonial matter between herself and decedent, as post-judgment relief, obtained an order that the proceeds of the life insurance policy, $10,000, and the accumulated dividends, $1,047.83, together with interest on these sums be paid to her as trustee for Lisa.
On July 22, 1980, 23 months after decedent's will was admitted to probate, Joyce Karamus filed a certification with the Union County surrogate instituting the proceedings leading to this appeal.*fn3 The certification recited she had communicated on her daughter's behalf with the attorney for the estate with
regard to Lisa's share of the estate. Joyce Karamus also said that she had not been given a copy of the will and the only asset left Lisa was the Bowery Savings Bank account. She further stated that she believed decedent lacked testamentary capacity when he executed the will and "Ann" and "Jack" Karamus may have attempted by fraud and other undue means to deprive Lisa of her "rightful inheritance" and had exerted undue influence on the decedent. On August 8, 1980, apparently pursuant to R. 4:80-7, a Superior Court judge issued an order for John A. Karamus, the executor, to show cause why the judgment of the surrogate's court of August 22, 1978 admitting the will to probate should not be set aside.
The will had been drafted by the attorney for the estate. He filed an answering certification indicating that when he interviewed the decedent approximately one week before the will was executed the decedent was alert. When the attorney returned to have the will executed the decedent was in the same condition and was completely aware of his acts. The attorney also stated that in May 1979 he had given Joyce Karamus a copy of the New Jersey transfer inheritance tax report but she never asked for or was given a copy of the will. He said that the estate assets had been distributed in accordance with the will. He set forth the legal conclusion that the "present attack on this Will is now barred by the provisions of R.R. 4:80-7 and R.R. 4:50-2."
On January 23, 1981 Joyce Karamus filed a reply certification stating she believed "that at the time of divorce there was a Will leaving everything to Lisa, or at least providing for Lisa." She said she had been appointed guardian for Lisa for the Bowery account. She detailed her reasons for thinking decedent had lacked testamentary capacity when he executed the will. Joyce Karamus requested that the matter be set down on a contested list, apparently for trial, on the grounds that decedent lacked testamentary capacity and that there had been fraud and duress or undue influence. Further she requested relief because the attorney for the estate had not notified her that he was not
representing Lisa's interests and that actions adverse to Lisa's interests had been taken.*fn4
The matter came on before the Superior Court, Law Division, for disposition on January 23, 1981.*fn5 The attorney for the estate urged that the application was untimely under R. 4:50-1 and R. 4:80-7. The court pointed out that there was no provision in the rules for notification of a person not a beneficiary when a will is probated and neither Joyce nor Lisa Karamus was a beneficiary under the will. The parties and the court discussed the then recently decided case of In re Green, supra, 175 N.J. Super. 595, holding in the circumstances there that the time limitations in R. 4:80-7 to challenge the probate of a will would not be applied against a beneficiary of an estate since the executor had not with respect to that beneficiary complied with R. 4:80-8. In our case the judge decided the matter without a plenary hearing on a record consisting only of the papers filed. He denied the application to set aside the probate of the will apparently on the ground that it was untimely. The judge indicated that In re Green should not be extended to situations in which the person seeking relief from the time constraints of R. 4:80-7 was not a beneficiary under the will. The judge did not consider whether principles similar to statute of limitations tolling provisions on behalf of infants should be read ...