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In re Estate of Celso

November 20, 2007

IN THE MATTER OF THE ESTATE OF JOSEPH CELSO, DECEASED.


On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, 138572.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2007

Before Judges Weissbard, S.L. Reisner and Gilroy.

Defendant Cheryl Celso appeals from an order voiding the probate of the May 29, 1997, Last Will and Testament of her father, Joseph Celso (decedent), and admitting an after-discovered will to probate. Plaintiff Joseph DiGilio, a long-time friend of decedent, produced the after-discovered will, which disinherited defendant and left decedent's entire estate to plaintiff. The trial court found that the after-discovered will was not a product of undue influence, ordering that it be admitted to probate. We affirm.

Plaintiff filed his complaint on March 17, 2000, seeking to admit the after-discovered will of decedent to probate. Defendant filed her answer on June 8, 2000. After discovery was completed, plaintiff moved for summary judgment, which was granted. On December 30, 2003, we reversed the grant of summary judgment and remanded to the trial court for a plenary trial on the merits.

Trial took place over five days in October 2004. On November 19, 2004, the judge rendered an oral opinion, ruling that decedent's December 15, 1999 will was not the product of undue influence and voiding the probate of a will executed by decedent on May 29, 1997. On June 23, 2006, the judge awarded defendant counsel fees, payable from decedent's estate.

I.

The only real asset in decedent's estate was property located at 430 Cook Road in Jackson. The property consisted of twelve acres and included a family home. Originally, title to the property was in the names of both decedent and his wife, Rose Celso. Decedent, however, deeded his interest in the property to Rose in the 1970's as part of a property settlement agreement. They never divorced and continued to live on the property together. Rose died in 1997.

Plaintiff and decedent had been friends for thirty years. In July 1998, the two men, each represented by counsel, entered into a contract for the sale of real estate. The contract provided that decedent, as seller, agreed to convey to plaintiff, as purchaser, approximately ten acres of the land in Jackson. Decedent would retain approximately one acre of land on which his house was located. The purchase price was $125,000. The contract was contingent upon subdivision approval allowing the buyer to divide the property into seven buildable lots.

The contract also provided that the seller had to provide marketable title to the property, which was still in Rose's name. Through a September 1998 agreement, Rose's estate conveyed title to Joseph. At that time, decedent signed a mortgage obligating him to pay defendant, his daughter, one-half of the proceeds from the sale of the property, or a minimum of $65,000. Decedent recorded the deed to the property on October 15, 1998, but the mortgage was not recorded at that time.

On September 29, 1998, decedent executed a power of attorney appointing plaintiff as his attorney in fact. He did that so he would not have to go to town hall for any proceedings regarding the subdivision of the property. Plaintiff never used the power of attorney and decedent revoked it on June 21, 1999.

On December 4, 1998, decedent was supposed to appear in court regarding the purchase of a tractor that was charged on a Sears Roebuck and Company account but never paid for. Plaintiff testified that decedent was too sick to go to the courthouse that day, so plaintiff went in his place and informed the court that decedent was sick and unable to appear.

Defendant recorded the mortgage in June 1999. In November 1999, plaintiff accompanied decedent to the office of attorney John Flynn. Decedent was upset that his daughter had recorded the mortgage and wanted Flynn to start a lawsuit against her. During this visit, Flynn called defendant to inquire about the outstanding loan from Rose and the recording of the mortgage. Defendant stated that she did not owe her father any money and that she wanted her $65,000; she hung up the phone. Flynn was retained to pursue the matter, with plaintiff paying the $1500 retainer fee. Plaintiff testified that the $1500 was to be deducted at closing from the purchase price of the property.

Several witnesses testified that decedent did not understand what was going on with the mortgage on the property and that he had heated arguments with his daughter during the summer of 1999. However, their relationship improved during the fall of 1999, and they discussed the possibility of defendant coming to live at decedent's home with him.

On December 15, 1999, plaintiff received a telephone call at his home from decedent asking if he could stop over at plaintiff's house. Also at plaintiff's house that morning were his niece, Carmella Davis, and her husband, Peter. Peter was painting an upstairs bedroom.

Decedent arrived carrying a large manila envelope. Carmella Davis let him in and brought him into the kitchen to see her uncle, the plaintiff. Decedent stated that he had brought something he wanted plaintiff to look at, removed a document from the manila envelope, and told plaintiff it was a will. It is unclear who prepared the will, but decedent's attorney, John Flynn, testified that he did not prepare it.

Decedent asked Carmella to print the date, her name, the name of her husband, and their address on page two of the document. On page three, she printed decedent's name, along with her name, her husband's name and the date. Peter was called downstairs, and decedent asked him and Carmella to sign the will as witnesses. Carmella explained that they would need to sign the will in front of a notary or the will would not be valid.

Plaintiff said that he knew a notary and called Ronald Ramsey, who agreed to come to plaintiff's house. Ramsey, a notary for fifteen years, kept a book in which he recorded all activity related to his position as a notary. After Ramsey arrived, he obtained identification from decedent, Carmella Davis and Peter Davis. Ramsey observed them signing the document.

It turns out, however, that Carmella and Peter signed only the self-proving affidavit in front of the notary. Rather than signing the attestation clause, as they should have, Carmella instead only printed both her and her husband's names at that place in the document.

Ramsey then put his seal on the will and signed it. In his book on December 15, 1999, he recorded decedent's name, Carmella and Peter Davis as witnesses to the will, and the driver's license numbers of all the parties.

Decedent's neighbor, Pamela Namowitz, testified that she knew decedent for twenty years and that he was a "real strong, like independent kind of a guy," who made his own decisions. He would not take orders from anyone, and resented it when people tried to push him into doing things he did not ...


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