December 11, 2007
IN THE MATTER OF THE ESTATE OF ANNA SCREEN FORSMAN, DECEASED, AND THE ANNA FORSMAN IRREVOCABLE TRUST.
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. P-70-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2007
Before Judges Coburn, Fuentes and Grall.
Anna Screen Forsman, a widow and the mother of seven adult children, executed a will and established an irrevocable trust. The will and trust provide for all seven children to share her assets equally. John A. Forsman, Jr., her oldest son, is the executor and trustee. Three of John's siblings, Paul J. Forsman, Therese Forsman Lynch and Peter J. Forsman, appeal from an order admitting their mother's will to probate. They contend that the judge erred in rejecting a subsequent will without first conducting a hearing. Paul also appeals from an order authorizing the posthumous transfer of the funds from his mother's individual retirement account (IRA) to the account that holds the funds of the irrevocable trust. John and his sister Christine Forsman Godly respond to the appeal from the order probating the will, and John responds to the appeal from the order transferring the IRA. We now consolidate the separate appeals and affirm the orders.
In December 2004, Mrs. Forsman, then eighty-two years of age, executed a durable power of attorney designating John as her attorney-in-fact and agent. On June 3, 2005, she executed a will, established an irrevocable trust and appointed John as her medical representative under a "living will." The documents were prepared by an attorney and executed by Mrs. Forsman at the attorney's office and in the presence of witnesses employed by the firm and a videographer who recorded the execution.
In July 2005, an unfortunate dispute between Mrs. Forsman's children arose. Paul filed a motion in the Chancery Division of the Superior Court in Monmouth County seeking review of his mother's medical condition and production of legal documents authorizing John to assume authority for her decisions. Paul and John had differing views on whether Mrs. Forsman should undergo a series of three spinal taps to relieve hydrocephalus. Paul favored the procedure. Although the judge concluded that Mrs. Forsman's healthcare directive was presumptively valid, he nonetheless appointed John Hoyle, an attorney, to serve as a temporary medical guardian for Mrs. Forsman. The judge directed Hoyle to meet with Mrs. Forsman, her children and doctors.
On July 28, 2005, Hoyle reported his findings to the court. John, Paul, Peter and their sister Christine participated in the telephone conference with the judge, which was recorded. According to Hoyle, Mrs. Forsman was able to discuss the spinal tap and seemed to want the procedure. While Hoyle had reservations, a doctor concluded she was capable of making the decision. Hoyle further reported that Mrs. Forsman recalled authorizing John to make her medical decisions, wanted John to keep his siblings informed and involved and was aware of and upset about the litigation her children were conducting. Mrs. Forsman's children confirmed their agreement with Hoyle's report and the recommended treatment. John agreed to give his siblings copies of the documents his mother had executed on June 3, 2005. There was no mention of a second will. No order was entered.
On the same day, July 28, 2005, Mrs. Forsman, who was hospitalized, signed a second will designating Peter as the executor and her daughter Therese as the alternate if Peter were unable or unwilling to serve. Peter and Therese witnessed the will, which was signed in the presence of and notarized by Paul.
The first spinal tap was attempted on July 29, 2005, and a second was scheduled for August 1, 2005. On July 30, 2005, however, Mrs. Forsman, accompanied by Paul and Therese, left the hospital after signing a form indicating that her departure was against medical advice.
On August 1, 2005, John's attorney located and reached Mrs. Forsman at Therese's home in Florida. Mrs. Forsman told the lawyer that she thought her children in New Jersey knew where she was and said she planned to return to New jersey in a week or two. In Florida, Mrs. Forsman signed a document purporting to revoke any authority she had granted to John by power of attorney, medical directive, trust and last will and testament.
Mrs. Forsman did not return to New Jersey within two weeks, and on August 16, 2005, John filed a complaint and order to show cause seeking appointment of a guardian for his mother. On August 17, 2005, the judge appointed Anne J. O'Connor, Esq., to serve as Mrs. Forsman's counsel and temporary guardian.
On September 13, 2005, Mrs. Forsman executed a "declaration of domicile" attesting to her permanent residence in Florida. On September 23, 2005, a psychiatrist, who reported that he had been treating Mrs. Forsman in Florida, wrote to O'Connor. In his opinion, Mrs. Forsman was competent, wanted to remain in Florida and would do "better" if she stayed with Therese.
On September 30, 2005, the return date for the order to show cause, attorneys representing John and Christine appeared. Paul, Peter and Therese did not appear personally or through counsel. Mr. Loigman, an attorney retained to represent Mrs. Forsman, also appeared.
O'Conner advised the judge that she had learned little about Mrs. Forsman's current condition. She had been able to speak to Mrs. Forsman only once by telephone. Although she had scheduled two appointments for independent medical examinations of Mrs. Forsman in Florida, Mrs. Forsman did not keep either.
While unable to provide the judge with information on Mrs. Forsman's present condition, O'Connor had obtained information about her mental status for the period between her hospitalization on July 25 and departure from the hospital on July 30, 2005. That information was not wholly consistent with information conveyed to the judge on July 28, 2005. A psychiatrist who evaluated Mrs. Forsman on July 25, 2005, described her as oriented to self and year only, but not to location, situation, month, day or current events. He concluded that her insight and judgment were impaired. A note on Mrs. Forsman's hospital chart for July 27, 2005, reported that she was "disoriented, confused, confabulating" and unable to "engage in any sort of reasonable discussion about her medical condition, treatments/workup, placement options, [or] risks/benefits of above."
On October 7, 2005, the judge entered an order authorizing the sale of Mrs. Forsman's residence as provided in the document establishing her irrevocable trust. In that context, the judge found that the video of Mrs. Forsman's execution of the will and trust documents on June 3, 2005, proved that she executed those documents of her own volition.
On November 9, 2005, the judge conducted a hearing on John's guardianship application. O'Connor, John, Christine, Paul, Peter and Loigman were present. O'Connor had current information. O'Connor located Mrs. Forsman in a hospital in Florida. On October 26, 2005, Mrs. Forsman told O'Connor she wanted to return to New Jersey to see a nephrologist who had treated her in the past. Mrs. Forsman was returned to New Jersey and hospitalized for treatment of failing kidneys. When O'Connor visited Mrs. Forsman, the older woman described herself as "lost" during her time in Florida. She did not recall signing a document declaring Florida her home, but she recalled executing estate planning documents designating John to oversee an equal division of her assets. She wanted John to manage her financial affairs. A psychiatrist diagnosed Mrs. Forsman as suffering from dementia and delirium and found her incapable of making decisions about "her medical care." O'Connor recommended appointment of John and Christine as guardians in accordance with Mrs. Forsman's wishes.
The judge entered a temporary order appointing John guardian of property that had not yet been transferred to the irrevocable trust and Christine guardian of the person. The judge agreed to visit Mrs. Forsman that evening in the hospital in the presence of her attorney and O'Connor, after which he would consider whether it was appropriate to rescind or revise the order. There was no objection. The judge met with Mrs. Forsman as promised, but the interview was not recorded. On November 21, 2005, the judge entered a final judgment, to take effect five days later, appointing John and Christine. There was no objection to the final order.
Mrs. Forsman remained in New Jersey until her death on February 5, 2006. The June 3, 2005, will was submitted to the Surrogate of Monmouth County for probate. Therese Forsman Lynch submitted the will executed on July 28, 2005 for probate in the State of Florida and notified the Surrogate of Monmouth County. In accordance with Rule 4:82, the surrogate declined to act. On March 17, 2006, John commenced a summary action by filing a complaint and order to show cause pursuant to Rule 4:84-1. On March 23, 2006, the judge issued the order to show cause setting a schedule for filing of any opposition and a return date for a decision on probate of the will of June 3, 2005.
Paul, Peter and Therese filed letters and certifications in opposition and provided a copy of the will dated July 28, 2005. No party requested discovery authorized by Rule 4:84-2. Prior to the return date, Florida declined to probate the will submitted in that state.
On June 2, 2006, the judge entered an order admitting Mrs. Forsman's will of June 3, 2005 to probate. The judge found that the only substantive difference between the June 3 and July 28 wills was the designation of the executor. He further found that Mrs. Forsman intended to name John as the executor, which was consistent with the June 3 will. Over objection and referencing prior proceedings, the judge concluded that a hearing on the validity of the will dated July 28, 2005, was unnecessary. In response to a motion filed by Therese, the judge also ordered John to file an accounting of the estate and the irrevocable trust.
Therese subsequently filed a motion for reconsideration, appointment of an independent auditor and a stay of the order probating the will pending appeal. The return date for that motion was August 11, 2006. On August 3, John filed a cross-motion for an order authorizing transfer of funds held in an IRA to the account held by the irrevocable trust. Paul wrote a letter to the judge, in which he asserted that the cross-motion was not timely served and should not be considered because a notice of appeal had been filed. On August 11, 2006, the judge granted John's cross-motion.
The issues raised on appeal from the order admitting the June 3, 2005, will to probate are as follows. Paul and Peter contend:
I. PLAINTIFF'S VERIFIED COMPLAINT AND SUPPORTING CERTIFICATIONS DO NOT ENTITLE JOHN A. FORSMAN, JR. TO SUMMARY JUDGMENT AS A MATTER OF LAW WITHOUT PERMITTING AN ANSWER, DISCOVERY OR TRIAL.
II. THE CIRCUMSTANCES OF THIS CASE IN THE CREATION OF AN IRREVOCABLE TRUST AND WILL BY THE CORPORATE ATTORNEYS FOR JOHN A. FORSMAN, JR. CREATE A PRESUMPTION OF UNDUE INFLUENCE.
III. THE WILL OF JUNE 3, 2005[,] WAS REVOKED BY THE WILL OF JULY 28, 2005[,] AND ITS PRESUMPTION OF VALIDITY HAS NOT BEEN OVERCOME AT TRIAL.
I. ANNA FORSMAN'S LAST WILL OF JULY 28, 2005[,] SHOULD BE ADMITTED TO PROBATE; THE MATTER SHOULD NOT HAVE BEEN DECIDED IN MINUTES; MCLAUGHLIN GELSON SHOULD HAVE BEEN EXCLUDED FROM THE PROCEEDING DUE TO AN IMPERMISSIBLE CONFLICT OF INTEREST; AND THE TRIAL [JUDGE] SHOULD EXCUSE HIMSELF DUE TO HIS INVOLVEMENT IN THE CASE AS A WITNESS.
After review of the record and the issues raised, we conclude that there is no basis for disturbing the order admitting Mrs. Forsman's will of June 3, 2005, to probate. A court may proceed in a summary manner in actions in probate. See R. 4:83-1; R. 4:84-1; R. 4:67-1. On the return date of an order to show cause in a summary proceeding, if "the affidavits show palpably that there is no genuine issue as to any material fact," the court may render judgment on the papers. R. 4:67-5.
None of the appellants were deprived of the opportunity to file an answer or cross-claim or obtain discovery. See R. 4:84-2; R. 4:67-5. Despite ample time, there was no attempt to file a pleading or motion requesting discovery. The order to show cause was entered on March 23, 2006, and the matter was not heard until June 2, 2006.
The only real question is whether there was a factual dispute requiring a hearing. A prior will may be revoked by the terms of a subsequent will. N.J.S.A. 3B:3-13. That rule, however, does not apply when the second will is invalid because it was made by one subject to undue influence. A will executed under "undue influence" may be set aside. Haynes v. First Nat. State Bank of New Jersey, 87 N.J. 163, 176-77 (1981) (discussing the elements of undue influence and the shifting burden of proof); cf. In re Coffin's Estate, 103 N.J. Super. 1, 3-4 (App. Div. 1968) (discussing testamentary capacity and burden of proof).
"'Undue influence' has been defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where a will benefits one with "a confidential relationship to the testatrix" and the circumstances are "of a suspicious character," there is a presumption of "undue influence," and the burden of proof is on the proponent of the contested will. Ibid. (internal quotations omitted).
The circumstances of this case, with which the judge was well-familiar, were sufficient to raise a presumption of undue influence.
There was evidence of a confidential relationship and a benefit to those involved in the execution. Mrs. Forsman's dependence upon and affection for her seven children was beyond dispute. She was hospitalized, facing a complex medical procedure and, by contemporaneous report of her court-appointed guardian, distressed by her children's ongoing disagreements and concerned about excluding any of them. The children who witnessed the second will were the same children who were named as the executor and alternate executor in that will. As the judge noted, the identity of the executors was the only meaningful distinction between the wills. The apparent advantage was winning the dispute about authority to administer the estate. Neither witness to the will was disinterested, and a third child, one admittedly concerned about his brother's exercise of authority over his mother's affairs, served as the notary.
The circumstances surrounding the execution of the will were sufficiently suspicious to raise the inference. The second will was executed on the very day of the hearing to clarify whether Mrs. Forsman or one of her children should have the authority to make a decision about her medical treatment. Two days after the will was executed and against medical advice, Mrs. Forsman discharged herself from the hospital. She left with the assistance of the son who had urged the necessity of a course of treatment that would be interrupted by her departure from the hospital and the daughter who witnessed the will. Mrs. Forsman then left New Jersey for the home of the same daughter in Florida. Once in Florida, Mrs. Forsman signed a declaration of Florida residence, which was later presented in connection with an attempt to probate the July 28, 2005, will in that state.
Because the record was sufficient to give rise to a presumption of undue influence related to execution of the second will, the proponents were not entitled to a hearing unless they raised a factual question relevant to rebut that presumption. Given Mrs. Forsman's consistent and repeated affirmation of her intention to have her son manage her financial affairs, and the absence of a proffer of any reasonable explanation for the execution of the will under the circumstances discussed above, we cannot conclude that the judge erred in reaching a decision without conducting a hearing. R. 4:67-5; see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
To the extent that the judge's oral decision can be read as giving effect to intentions Mrs. Forsman expressed when he spoke to her in connection with the guardianship proceeding in November 2005, we do not rely upon that conclusion. See Meeker v. Boylan, 28 N.J.L. 274 (Sup. Ct. 1860) (noting that "[a] will can only be revoked in the manner provided by statute, and cannot be changed, annulled, or in any manner affected by the verbal declarations of the testator made after its execution"). Rather, noting that the judge's finding is also supported by later expressions of Mrs. Forsman's intent as reported by her court-appointed guardian, we consider the evidence of subsequent intent as relevant only to the ability of the proponents of the second will to rebut the presumption of undue influence.
For the foregoing reasons, we affirm the order admitting to probate the will dated June 3, 2005.
On appeal from the order authorizing transfer of funds, Paul contends:
I. THE CROSS-MOTION OF JOHN A. FORSMAN, JR. DOES NOT ENTITLE HIM TO SUMMARY JUDGMENT AS A MATTER OF LAW AGAINST A PERSON WITH NO MOTION PENDING.
II. THE CIRCUMSTANCES OF THIS CASE IN THE CREATION OF AN IRREVOCABLE TRUST AND WILL BY THE CORPORATE ATTORNEYS FOR JOHN A. FORSMAN, JR. CREATE A PRESUMPTION OF UNDUE INFLUENCE.
III. THE POWERS OF JOHN A. FORSMAN, JR. WERE REVOKED BY A SEPARATE WRITING DATED AUGUST 1[,] 2005.
IV. THE ASSET TAKEN IMPROPERLY ON AUGUST 11, 2006[,] SHOULD BE AWARDED TO THE APPELLANT AS A MATTER OF LAW AND BECAUSE IT IS CLEAR THAT THE TRIAL COURT HAS BEEN PREJUDICED BY THE MISCONDUCT OF OTHERS SUCH THAT NO FAIR TRIAL CAN OR WILL OCCUR.
Paul's objections lack sufficient merit to warrant more than brief comment. R. 2:11-3(e)(1)(E). John's cross-motion was not improperly filed or considered. The cross-motion, which concerned John's administration of his mother's estate and irrevocable trust, was related to Therese's motion for reconsideration of the order directing an accounting. See R. 1:6-3(b). The judge was not deprived of jurisdiction to enforce the order probating the will because a notice of appeal from that order was filed. See R. 2:9-1(a). Paul did not request an adjournment or opportunity to respond to the cross-motion. He simply asked the judge to refuse to hear the cross-motion and did so by way of letter, not formal response in opposition. We decline to consider Paul's claim of undue influence related to the trust, because that claim was not raised below. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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