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In re Probate of

Decided: November 13, 1992.

IN THE MATTER OF THE PROBATE OF THE ALLEGED LAST WILL AND TESTAMENT OF SIDNEY LIEBL, SR., DECEASED


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.

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

Michels

Plaintiff Sidney Liebl, Jr. appeals from (1) a judgment of the Chancery Division, Probate Part, that dismissed his complaint seeking to set aside the judgment of the Bergen County Surrogate admitting to probate the Last Will and Testament of his father Sidney Liebl, Sr., deceased, and awarded defendant Arleen Backer costs against him, and (2) a post-judgment order denying his motion for rehearing or reconsideration.

On June 5, 1990, Sidney Liebl, Sr. died at age 82. Decedent was survived by his son, plaintiff; his granddaughter, defendant; and two great-grandchildren, Bryan and Brett Backer. On June 21, 1990, the Last Will and Testament of decedent, dated July 21, 1989, was admitted to probate by judgment of the Surrogate of Bergen County. The will named defendant as the primary beneficiary. Thereafter, plaintiff instituted this action in the Chancery Division, Probate Part, seeking to set aside the judgment of probate and to have a substitute administrator pendente lite appointed. Plaintiff claimed that decedent "was incompetent and could not have known the nature of his acts and was, therefore, incapable of making a Last Will and

Testament." The trial court held that decedent's July 21, 1989 will was properly admitted to probate and that "the proofs establish that there is no basis for a challenge to the admission of the Will to probate based upon lack of testamentary capacity, undue influence, or suspicious circumstance." This appeal followed.

Plaintiff seeks a reversal of the judgment, contending that (1) decedent did not comprehend the nature of his assets and, therefore, the distribution under his will was invalid; (2) the facts established that there was undue influence by defendant upon decedent so as to invalidate the July 21, 1989 will; (3) the trial court should not have enforced the provisions of the will since the result is contrary to public policy, and (4) since the will of July 21, 1989 should not be probated, decedent's will of August 5, 1982 should be deemed uncancelled and unrevoked or, alternatively, the intestacy statute should apply. We disagree and affirm.

We are satisfied from our study of the record and the arguments presented that there is sufficient credible evidence in the record as a whole to support the findings and Conclusions of the trial court and we discern no good reason or justification for disturbing them. See Leimgruber v. Claridge Assocs. Ltd., 73 N.J. 450, 455-56, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). See also R. 2:11-3(e)(1)(A). Moreover, all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).

Additionally, we point out that "[t]he 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." Gellert v. Livingston, 5 N.J. 65, 78, 73 A.2d 916 (1950); In re Hoover, 21 N.J. Super. 323, 328, 91 A.2d 155 (App.Div.1952), certif. denied, 11 N.J. 211, 93 A.2d 819 (1953).

Cf. Dolson v. Anastasia, 55 N.J. 2, 6-7, 258 A.2d 706 (1969). Such factual findings should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonably credible evidence so as to offend the interests of Justice. Leimgruber v. Claridge Assocs., Ltd., supra, 73 N.J. at 456, 375 A.2d 652; Rova Farms Resort v. Investors Ins. Co., supra, 65 N.J. at 484, 323 A.2d 495; State v. Johnson, supra, 42 N.J. at 162, 199 A.2d 809.

Furthermore, there is a legal presumption that "the testator was of sound mind and competent when he executed the will." Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76, 432 A.2d 890 (1981) (quoting Gellert v. Livingston, supra, 5 N.J. at 71, 73 A.2d 916); In re Hoover, supra, 21 N.J. Super. at 325, 91 A.2d 155. The gauge of testamentary capacity is "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 the factors to the others, and the distribution that is made by the will." Gellert v. Livingston, supra, 5 N.J. at 73, 73 A.2d 916; see 5 Alfred C. Clapp, New Jersey Practice -- Wills and Administration § 36 at 150-56 (1982). Testamentary capacity is to be tested at the date of the execution of the will. Gellert v. Livingston, supra, 5 N.J. at 76, 73 A.2d 916. Furthermore, "[a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will." In re Rasnick, 77 N.J. Super. 380, 394, 186 A.2d 527 (Cty.Ct. 1962); see Loveridge v. Brown, 98 N.J. Eq. 381, 387, 129 A. 131 (E. & A. 1925); 5 Clapp, supra, ยง 36 at 153. "[T]he burden of establishing a lack of testamentary capacity is upon the one who challenges its existence [and] [t]hat burden must be sustained by clear and ...


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