On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, P-321-04.
The opinion of the court was delivered by: Seltzer, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin*fn1, Lefelt and Seltzer.
This dispute between Richard Schifftner, (to whom we refer as "plaintiff"), and his sister, Linda Jackson ("defendant"), requires a determination of plaintiff's ability to contest the probate of his mother's will more than four months after it had been admitted to probate. The judge initially considering the issue decided plaintiff's challenge to the probate of his mother's will was untimely filed and dismissed the complaint. We agree with the result, although for reasons other than those expressed by the motion judge, and, therefore, affirm.
The mother of the parties, Florence F. Shifftner, executed a will on October 30, 2001, and died on August 5, 2003. On August 13, 2003, plaintiff learned of the will, which substantially favored defendant, and wrote to the Bergen County Surrogate requesting that the will not be admitted to probate. That letter was treated as a caveat. Slightly more than three months later, defendant, who had been named the executrix, filed a complaint seeking to discharge the caveat and admit the will to probate. She obtained an Order to Show Cause directed at plaintiff, who filed no responsive papers. Instead, he appeared on the return date. Defendant, having had no indication that the matter was contested, was not then present.
After a telephone call to defendant's attorney, the judge adjourned the proceeding and advised plaintiff "to get a lawyer and to do something." Nevertheless, plaintiff appeared on the adjourned return date without an attorney, explaining that he could not afford representation.
The judge proceeded to hear defendant's application and began by explaining to plaintiff that individuals, so long as they are competent and free of undue influence, may devise their estates as they wish. Plaintiff interrupted, indicating that "I have a police report that states that she has Alzheimer's. I have another police officer that is willing to come in if he can get away." He also advised the judge that a witness was available to testify as to a statement made by his father before his death, to the effect that "she was not of well mental health." Finally, plaintiff represented that "my mother was considered as legally blind by the State of New Jersey, with Alzheimer's by UMDNJ."
In response, defendant's attorney told the judge that the will had been drawn by an attorney who had executed a certification in anticipation of the proceedings on the caveat. That certification is not included in the record before us but the judge examined it and said:
Okay, Edward Hook, attorney-at-law. The will was signed October 30, 2001. It says she was not clean. She had poor vision. He discussed the will with her. Read it to her verbatim. I am satisfied that there is nothing here to support the caveat and I am going to grant the relief sought.
That relief included the admission of the will to probate and an order removing plaintiff from decedent's home, in which he was then living. The decision was memorialized by an order dated January 16, 2004.
Plaintiff did not appeal. He took no action until eight months later when, on August 20, 2004, he secured a loan from his girlfriend and retained an attorney who filed a complaint respecting the will. The complaint did not attack the judgment admitting the will to probate but, instead, sought a declaration that the will was the product of undue influence. An Order was entered requiring defendant to show cause on October 15, 2004, why the matter should not be set down for an evidentiary hearing "to determine whether the Last Will and Testament of Florence F. Schifftner was the product of undue influence . . . ." No reference was made to the January 16, 2004, judgment admitting the will to probate.
On September 17, 2004, defendant filed a motion to dismiss the complaint, arguing that the issues had already been litigated when the will was admitted to probate. One week later, plaintiff moved for an order extending the four-month period within which an action may be brought to challenge a judgment of probate.*fn2 See R. 4:85-1. The basis for his request was his lack of knowledge of the law and his inability to afford an attorney to represent him at the time the probate judgment was entered. Plaintiff asserted that he had moved to challenge the probate as soon as he was able to secure the funds ...