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In re Estate of Payne

April 20, 2006


On certification to the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court is whether the decedent, Theodore Payne, intended to bequeath his New Jersey property to his partner debt-free.

Payne met Don Burton in 1997 when both were suffering from AIDS. In May 1997, they began living together in Payne's residence in Morristown. At the time, Payne was a Managing Director of Finance at Metropolitan Life, and Burton was disabled.

Payne had jointly purchased a vacation home in Harpswell, Maine with Frederick "Rick" Wohlfarth, which provided for a right of survivorship. Payne and Wohlfarth had lived together as partners but, at the time they purchased the vacation home, their partnership had ended. The men remained friends and agreed that the first to die would satisfy the balance of the mortgages on the property and that each would provide for that provision in his respective will. Payne and Wohlfarth exchanged drafts of their wills to ensure each contained similar language concerning the payment of mortgage debts on the Maine property. In his March 13, 1998 will, Payne bequeathed to Wohlfarth his half interest in the Maine property and a sum equal to the amount necessary to pay off the mortgage debts on the Maine property reduced by the proceeds of any life insurance policy on Payne's life payable to Wohlfarth. Payne also bequeathed the personal property located in Morristown to Wohlfarth and divided the residue among other beneficiaries. There was no provision for Burton in this will.

In July 1998, Payne sold the Morristown residence and bought a home in Harding Township, New Jersey. Burton lived in the home with Payne. According to Burton, while traveling with Payne to Maine in the summer of 1999 or 2000, they discussed the care of Payne's two dogs upon Payne's death. Burton told Payne that he was concerned about being able to provide a home for himself and the dogs should Payne die. Burton claims that Payne told him not to worry because he would leave the house to Burton and that Payne's life insurance proceeds would pay off the mortgage on the New Jersey home. Burton also claimed that a similar conversation took place on another trip to Maine during the summer of 2000. At that time, Payne allegedly again said that Burton would inherit the New Jersey property debt-free.

At some point, Payne contacted his attorney, Jack Wolff, to change his 1998 will. On August 15, 2000, Wolff sent Payne a revised draft. The primary change in the will provided a gift to Burton of Payne's personal property located in the New Jersey home. In November 2000, Payne reviewed the draft, outlined several changes and mailed the will back to Wolff. The will neither specified a bequest of the New Jersey home to Burton nor that it be inherited debt-free. Wolff made the changes and sent another draft to Payne on November 21, 2000.

Payne's deteriorating health forced him to leave his job in September 2001. Burton assisted Payne with his hygiene needs, the preparation of meals, transportation to and from medical appointments, and the care of Payne's dogs. Payne still had not signed the revised will and on October 1, 2001, Payne wrote to Wolff commenting that the will only gave the contents of the New Jersey home to Burton, even though he intended to give the house and contents to Burton. Payne also inquired about issues concerning language in the will relating to the Maine property. Wolff made certain changes and forwarded a revised draft to Payne on October 15, 2001. Again, there was no reference to a bequest of the New Jersey home to Burton. Burton discussed with Payne his concerns about this proposed draft and they both agreed that Burton should be referred in the will as "partner" rather than "friend." In addition, Burton wondered why the will expressly provided for payment of mortgage debts for the Maine property but did not contain similar language for the New Jersey property. Payne responded that the specific language was required for the Maine property because it was jointly owned but that the clause in his will directing payment of all his just debts provided for the debt on the New Jersey property.

Payne wrote Wolff on November 11, 2001, instructing him to refer to Burton as "partner," to prepare a Power of Attorney and Medical Directive in favor of Burton, and to provide guidance on the financial and tax aspects of planning his estate. Crucial language in this letter refers to: liquidating the debt encumbering his real estate so that it passes to his beneficiaries free and clear; not wanting the properties sold to satisfy the debt; and desiring that his life insurance, worth slightly over $1million, be used to pay off the mortgage balances. Payne suggested that they discuss these issues when he comes to sign the will and other documents. After receiving this letter, the only change Wolff made was to designate Burton as "partner." On March 4, 2002, Wolff sent Payne the revised will, power of attorney, and living will.

Payne was hospitalized on March 13, 2002, the day before he was sign the documents in Wolff's office. Wolff came to the hospital the following day and, after determining that Payne was lucid and wanted to execute the will and related documents, had Payne sign these papers. The next day, Payne lapsed into a coma and remained in that condition until his death on April 21, 2002. Daulton Lewis was named executor of the will and, ultimately, Payne's estate satisfied the mortgage on the Maine property but refused to pay the debt on the New Jersey property.

Burton sued the estate, alleging that at the time of Payne's death, he had been living with Payne as his partner for about four years, that Payne had told him that he would inherit the New Jersey property debt-free, and that the November 11, 2001 letter to Wolff expressed that intent. Answers were filed by Lewis and various other beneficiaries. At the bench trial, Burton testified about the relationship and Payne's expressed intention to bequeath the New Jersey property to Burton debt-free. Wolff testified that Payne had not instructed him to do the same thing regarding mortgage debts for the New Jersey property that he did for the Maine property. Wolff also stated that he did not interpret the November 11th letter to mean that Payne wanted the mortgage debts on the New Jersey property satisfied out of his estate. Lewis and Wohlfarth also testified.

The trial court found that the November 11th letter evidenced Payne's desire to find a way to protect Burton from the mortgage payments but nonetheless concluded that Payne failed to meet the burden of establishing Payne's intention of giving him the property debt-free. The court reasoned that Payne was looking in other directions to protect Burton and never expressed an intention that the other beneficiaries bear the expense of having the estate satisfy the mortgage. The court rejected the "all my just debts" clause as evidence of Payne's intention to cover the mortgage debts on the real estate, especially in light of the detailed language regarding the Maine property.

The Appellate Division affirmed, finding that the trial court properly applied the doctrine of probable intent in that Payne was unable to carry out his desire to provide Burton with a debt-free property because of the priority attached to the Maine property and the lack of sufficient residual assets remaining in the estate to accomplish the other bequests.

The Supreme Court granted certification.

HELD: The application of the doctrine of probable intent demonstrates that Theodore Payne intended to bequeath his New Jersey property to his partner debt-free.

1. In interpreting a will, the goal is to ascertain the probable intent of the testator. Primary emphasis should be on the testator's dominant plan and purpose as they appear from the entirety of the will in consideration of the surrounding facts and circumstances. The court should ascribe to the testator those impulses that are common to human nature and construe the will to effectuate those impulses. Courts are to effectuate the testator's probable intent to accomplish what he or she would have done had he or she envisioned the present inquiry. Extrinsic evidence should be admitted to aid in ascertaining probable intent. (Pp. 11-14)

2. The most important evidence of Payne's probable intent is set forth in the November 11, 2001 letter to his lawyer. The fifth and sixth paragraphs of the letter clearly evidence Payne's probable intent and are consistent with an intention that the "all my just debts" clause was a direction for the estate to pay the mortgage debts on the New Jersey property. There is a clear and unambiguous expression of Payne's intent that his beneficiaries, Burton and Wohlfarth, receive their respective real estate debt-free and that neither beneficiary should be required to sell the property to pay off the mortgages. Payne's use of the plural "beneficiaries" and "properties" evidences that he was referring to both Wohlfarth and Burton and to both the Maine and New Jersey properties. (Pp. 14-17)

3. The Court's reasoning also supports the conclusion that Payne's probable intent was to pay off the mortgage debts on the Maine property first and then pay off the debt on the New Jersey property. (P. 18)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO, dissenting, is of the view that it is the November 11, 2001 letter that is ambiguous not the will, which clearly demonstrates that the mortgages on the Maine home were to be satisfied from the estate, while no such provision was made in respect of the New Jersey residence. Justice Rivera-Soto would be guided by deference to the trial court's findings properly given them by the Appellate Division.


The opinion of the court was delivered by: Justice Wallace, Jr.

Argued January 4, 2006

In this will contest, decedent had executed a will with a specific provision for his estate to pay to the joint tenant of a property he owned in Maine an amount equivalent to the mortgage debts on that property. Other than the "payment of all my just debts" clause, the will did not have a provision for the estate to pay the mortgage debts on decedent's home in New Jersey. Decedent bequeathed his New Jersey property to his partner, who lived with him in that residence. The trial court concluded that decedent's partner and not the estate was responsible for payment of the mortgage debts on the New Jersey property. The Appellate Division affirmed. We ...

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