On appeal from Superior Court of New Jersey, Law Division, Morris County, L-148-99.
Before Judges Kestin *fn1, Eichen and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from an order granting summary judgment dismissing her legal malpractice action against defendants Samuel N. Reiken, Esq., Louis A. Chiarolanza, Esq., his partner, Samuel F. DeAngelis, Esq. and their law firm, Chiarolanza and DeAngelis. Reiken was plaintiff's initial attorney and was succeeded in her representation by Chiarolanza. The lawsuit involved allegations that the attorneys mishandled plaintiff's claim to the estate of plaintiff's fiancé Robert Courtney.
In this appeal we are called upon to address the meaning of the term "material provisions" in the holographic will statute, N.J.S.A. 3B:3-3, and whether a piece of paper found in a safe deposit box maintained by Courtney, met the statutory requirements for a holographic will. We conclude that "material provisions" require evidence of both testamentary and donative intent, both of which were lacking in this case. Because the existence of a valid holographic will provides the basis for plaintiff's claim of damages, we affirm the summary judgment in favor of defendants.
Giving plaintiff the benefit of all favorable inferences, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the relevant facts are as follows. Plaintiff, Lisa Simonelli and Robert Courtney became engaged in March or April 1992, some two or three months after they met. A wedding was planned for October 1992, but was postponed twice, first to January 1993 and then again to April 1993, both times due to unforeseen events. Nonetheless, plaintiff moved into Courtney's condominium in October 1992, at which time Courtney began discussing with plaintiff the prospect of making a will. In plaintiff's presence, Courtney contacted an attorney to amend the deed of the condominium to include plaintiff's name. The attorney advised Courtney to wait until after the parties were married.
Toward the end of August 1992, in addition to supplying plaintiff with the name of an attorney, defendant, Samuel N. Reiken, Courtney gave plaintiff a set of keys to his safe deposit boxes at Chemical Bank and Summit Trust. Courtney told plaintiff that if anything happened to him, everything she needed to be taken care of was in the boxes.
In addition to attempting to amend the deed to the condominium, Courtney discussed his intention to draw a will with a New York attorney, Robert Grohman, who had handled the estates of Courtney's parents. Grohman referred Courtney to Reiken because Courtney was a resident of New Jersey. A meticulous calendar kept by Courtney reflected that on August 2, 1992, a retainer agreement was entered into between Courtney and Reiken. Yet, it does not appear that Courtney ever met with Reiken. In fact, the calendar also indicates both Courtney intended to meet with Reiken on November 5, 1992, but also indicates that he intended to cancel the November 5 appointment in favor of either November 19 or December 4, 1992.
In any event, before such an appointment could be kept, Courtney became ill on November 27, 1992 and was rushed to the emergency room where he was diagnosed with ketoacidosis. At this time, Courtney reminded plaintiff not to forget about the safe deposit boxes. Courtney fell into a coma two days later and remained comatose until his death on December 24, 1992.
We need not provide any detail concerning plaintiff's dealings with Reiken, and subsequently with defendant Louis Chiarolanza, Esq., nor her specific allegations of malpractice because, as previously stated, the only facts needed to resolve this appeal deal with the legal significance of a note found in one of Courtney's safe deposit boxes. Specifically, we are satisfied, as was the motion judge, that the case turned on whether the note is legally cognizable as a holographic will.
The note in question was found on top of a jewelry pouch in Courtney's safe deposit box at Summit Bank. That box possibly contained, in addition, a single IRA. *fn2 The note contained printed language setting forth Courtney's name, address, and telephone number, as well as the name of attorney Grohman in Garden City, New York. Additionally, in Courtney's handwriting, the note, dated August 3, 1992, stated: "In case of death - goes to Lisa Simonelli." The note was signed by Courtney and further noted that "Lisa lives in Madison" and provided her phone number. After reviewing the note in view of the discovery, Judge Cramp determined that the writing did not constitute a valid holographic will. On appeal, plaintiff claims that summary judgment was improvidently granted because there were genuine issues of material fact in dispute. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540. *fn3 Specifically, plaintiff argues that the facts of record create a genuine issue as to whether the note constitutes a holographic will such that the issue should have been presented to a jury for determination. Alternatively, plaintiff contends that the circumstances leading up to Courtney's death create an issue of fact as to whether there had been a gift causa mortis, that is, a gift made in contemplation of death, citing In the Matter of Estate of Link, 328 N.J. Super. 600, 605 (Ch. Div. 1999).
We address the causa mortis issue first. This issue was never raised at the trial level but is now argued for the first time on appeal. Because it does not concern a matter "of great public interest," Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234-35 (1973), we decline to address it. See also Cornblatt v. Barow, 153 N.J. 218, 230 (1998). In any event, even if we were to entertain the issue, it is clearly without merit. There was absolutely no evidence to ...