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In re Estate of Mosery

April 04, 2002


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Mon-P-82-98.

Before Judges Havey, Coburn and Weissbard.

The opinion of the court was delivered by: Coburn, J.A.D.


Argued March 18, 2002

Eli Mosery, the decedent, died on August 15, 1995. He was survived by his widow, plaintiff Bruria Mosery, who had been his wife for over four decades, and by his four sons, Ilan, Nizan, Nathaniel and Zvi, the last two being the defendants in this action. About eight months before his death, Eli transferred all of his major assets, apparently worth at least $5 million, to his sons, leaving himself nothing and depriving his wife of any legal benefit from his estate. Asserting that the assets were transferred as a result of defendants' exercise of undue influence, plaintiff sought equitable relief. Ultimately, on defendants' motion for summary judgment, her complaint was dismissed on the ground of laches. She appeals, and we reverse.


On April 9, 1998, Ilan filed the initial complaint in the Chancery Division, Probate Part, pursuant to Rule 4:83, and an order to show cause was issued to all interested parties. On May 20, 1998, Bruria filed a certification supporting Ilan's requests for relief. Nathaniel and Zvi filed an answer; Nizan, however, has not appeared in the action. In October 1998, an amended complaint formally named Bruria as an additional plaintiff. Subsequently, Ilan withdrew as a plaintiff.

Explication of the allegations in the complaint will be enhanced by a brief summary of certain undisputed events preceding and following Eli's death. On July 19, 1983, Eli executed a simple will leaving his estate to Bruria, with their children as alternate beneficiaries should she predecease him. On May 5, 1994, Eli executed a complex will, which, in essence, provided that: (1) Bruria would receive Eli's personal property; (2) Nathaniel, Zvi, and Nizan would receive Eli's shares of 598 Broadway Realty Assoc., Inc. ("Broadway Realty"); (3) Bruria would receive the benefit of a marital deduction trust; and (4) the balance of the estate would be divided among all the children. In December 1994 and January 1995, Eli transferred all of his major assets to his sons. Those assets consisted of the stock in two corporations, Broadway Realty and Broad Prince Realty Corp., each of which owned buildings in New York City. The value of the stock is alleged to be approximately $5 million.

The first count of the complaint asked that Eli's 1994 will be admitted to probate, challenged the validity of Eli's inter vivos transfers, and asserted that Bruria "was led to believe by [defendants] that she would be taken care of financially by them. Therefore, [she] never even sought to claim an elective share of the decedent's estate to which she could have been entitled . . . pursuant to N.J.S.A. 3B:8-1 et seq." The second count alleged that Nathaniel and Zvi had improperly caused the inter vivos transfers, asked that they be set aside, and requested an accounting. The third count alleged that the 1994 will was executed without testamentary capacity and asked that it be declared void. The fourth count asked that the 1994 will be declared void because it was the result of undue influence exerted on Eli by Nathaniel. The fifth count asked that the 1983 will be admitted to probate. All counts asked for "any and all other relief which this [c]court deems just and equitable." The amended complaint simply added Bruria's name.

Defendants filed their joint answer on May 22, 1998, and shortly thereafter, at the court's request, an affidavit providing additional information in support of their positions that probating the 1994 will was pointless since there were no assets in the estate at the time of Eli's death and that Bruria had acquiesced to the transfers which left the estate valueless. They asserted that Eli's major assets were the shares in the corporations that were distributed in December 1994 and January 1995. More to the point, they made the following assertions with respect to Bruria:

6. Prior to April 20, 1998, . . . BRURIA MOSERY [has] enjoyed the benefits of the distributions made by [Eli] in December 1994 and January 1995.

9. [T]he monies distributed from the various corporations to [BRURIA] from January 1, 1996, through May 20, 1997, total[ed] $148,746.18.

11. Prior to January 1, 1998, our mother spent whatever amounts of money she wanted to spend in an unlimited fashion by charging them to her credit cards and receiving cash advances from her credit cards.

12. All of these bills were paid by the corporations gifted by our father to all of his sons.

13. In addition to the fact that our mother received $148,746.18, the economic value of the amount she received has been enhanced by the fact that the total amount was non-taxable, and the income taxes were paid by the various corporations.

50. It can also be seen that our mother, BRURIA MOSERY, has received substantial benefits, as we promised, to support her from the assets gifted by our father . . . .

Their affidavit also described a number of lawsuits pending between them and Ilan in various New York courts regarding the corporate properties and related matters. It noted that a stipulation of settlement was entered in one of those actions on January 20, 1998, pursuant to which Ilan, on the one hand, and Nathaniel and Zvi, on the other, resolved their disputes over various corporate properties, at least one of which had been received from their father. The stipulation, apparently at ...

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