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In re Probate of

Decided: November 14, 1990.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF REINE T. HUGHES, DECEASED


On appeal from Superior Court, Law Division, Probate Part, Hunterdon County.

Petrella, Bilder and Muir, Jr. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

Arthur G. Nevins, Jr. filed a caveat against the probate of his wife's January 3, 1989 will. That caveat was dismissed by the Probate Part Judge on the ground of lack of standing. Nevins appeals.

Nevins, a practicing attorney, married Reine T. Hughes (decedent) in 1982, but apparently began seeing another woman, Amanda Mitchell, in 1984 and had a daughter by her in August 1986. He separated from his now deceased wife in June 1986 and filed a complaint for divorce in October 1988.

A property settlement agreement drafted by Nevins and executed by him and decedent on November 9, 1988, stated that

each party waived any claim or interest which he or she had in the estate or property of the other, including the right to elect a spousal share under state statutes. Each party agreed therein to refrain "from any action or proceeding which may tend to avoid or nullify to any extent or in any particular" the terms of any will then in existence or which might thereafter be executed.

On January 6, 1989, Nevins' attorney advised decedent that a divorce hearing was scheduled for January 30, 1989. However, Nevins learned on January 18, 1989, that decedent was seriously ill from lung cancer which had metastasized to the brain. Nevins visited decedent in the hospital. He acceded to her request not to go through with the divorce and returned to her the wedding ring he had given her when they married, and which she had given back to him when they separated. The divorce hearing was postponed by Nevins' attorney due to decedent's illness. She died on February 17, 1989. On February 22, 1989, Nevins' attorney requested that the divorce complaint be dismissed because of decedent's death. Nevins married Mitchell in May 1989.

Decedent's will, executed on January 3, 1989 to replace a prior will, gave her entire estate (asserted by Nevins to be $900,000) to one of the proponents of the will, Diane DiNicola Powers, described in her will as "my friend Diane Di Nicola."*fn1 Decedent's estate included an 18-acre farm in Flemington, New Jersey, of which Powers (DiNicola) and her husband were tenants. The other major asset of the decedent's estate is said to be an advertising business which she owned and operated.

Based on his claim that decedent had been the subject of improper influence by Powers and her husband, Nevins apparently contacted an attorney and first cousin of decedent, who, along with seven other first cousins, would have been heirs of decedent under the intestacy statutes. The cousins filed caveats

to the will, as did Nevins. After discovery had taken place, the proponents of the will moved for summary judgment dismissing Nevins' caveat. Their motion was granted for reasons expressed in the trial judge's October 27, 1989 oral decision, and judgment was entered December 1, 1989. In that decision and the judgment Nevins' request for attorney's fees was denied.

On December 14, 1989, Nevins filed a motion for reconsideration which was denied on January 31, 1990. The remaining caveators proceeded to trial on February 26 and February 27, 1990. On February 27, 1990, these caveators agreed to a settlement in which decedent's will was admitted to probate. They received $30,000 in satisfaction of their claims and $40,000 in attorneys' fees and costs. Approximately $70,000 in fees and costs was awarded to the attorney ...


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