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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...