On appeal from Superior Court of New Jersey, Law Division, Essex County, L-8308-05.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Sapp-Peterson and Messano.
Approximately one year after the death of Mary Garruto on October 30, 2004, and the admission of her will to probate and issuance of letters testamentary to decedent's niece, defendant Lorraine Cannici, on November 3, 2004, Mary's brothers, plaintiffs Felix and Francisco Garruto, filed a two-count action in the Law Division alleging the commission of fraud in the inducement by Cannici, and claiming that as the result of the fraud, they were denied their proper shares of the estate of their sister. Following discovery, Cannici moved for summary judgment on the brothers' fraud claim, arguing that in depositions and answers to interrogatories, the brothers had stated unequivocally that no fraudulent acts had taken place. The motion judge construed the complaint to set forth a cause of action for tortious interference with an expected inheritance, perpetrated by way of fraud and, ruling in Cannici's favor, he determined that the brothers were unable to support their claims factually, and that Felix's self-serving assertions, contained in certifications opposing summary judgment, did not create a question of material fact sufficient to defeat Cannici's motion. The judge additionally found that the brothers' "cause of action sounds in the nature of a challenge to the Will by reason of undue influence more properly and appropriately brought before a Probate Court consistent with the rules of court." The present appeal followed.
On appeal, the brothers*fn1 present the following arguments:
I. There Is Ample Evidence From Which A Fact Finder Can Conclude That There Has Been A Tortious Interference With An Expected Inheritance.
II. Summary Judgment Should Not Have Been Granted Because Of The Favorable Inferences To Be Drawn From The Evidence.
In response, Cannici argues that (1) the brothers failed to mount a challenge to the probate proceedings; (2) their challenge to the will by means of a tort action was untimely pursuant to R. 4:85-1; (3) the absence of a challenge to the will precludes collateral attack; and (4) no evidence supports the brothers' claims of fraud, and therefore summary judgment was properly granted. We affirm.
We understand from the record that Mary was born in 1943 and died on October 30, 2004. Her parents pre-deceased her, she never married, and she had no children. When she died, her brothers were her next of kin.
Mary was a long-time employee of the Internal Revenue Service. Although, at some point, she had acquired a home from a "former boyfriend," for fifty-six years Mary maintained a residence with her two brothers in the family home. According to Felix, he and Mary had a close and loving relationship for "at least" fifty-six out of her sixty-two years of life. Also according to Felix, Mary had stated on many occasions that she would leave him approximately twenty percent of her estate. However, the record suggests that, at some point prior to the execution of her will, Mary and her two brothers fiercely argued, and Mary, in Cannici's words, "was thrown out" of the family home. Mary's will was executed on October 31, 2002, in anticipation of a trip to Italy by Mary, a long-time male friend, Cannici, and Cannici's family. The will did not name Felix as a beneficiary, and provided only a small bequest of $5,000 to Francisco, a brother that Cannici characterized as possessing "a more submissive personality." A significant part of Mary's estate passed to Cannici, a woman of the same age as Mary who maintained a close friendship with her.*fn2
In August 2003, almost a year after her return from Europe, Mary was diagnosed as suffering from a malignant brain tumor and, although surgery was performed, the cancer had metastasized to her lungs and elsewhere, causing Mary's death in 2004. In April 2004, prior to her death but during her last illness, Mary gave written instructions to Cannici to transfer $7,000 to Felix and $5,000 to Francisco. Neither claims that she was incompetent to do so.
The present suit was instituted on October 11, 2005, approximately one year after Mary's will had been admitted to probate and letters testamentary had been issued. At that point, no caveats to the will had been filed, and some distributions had been made. Although the suit named Cannici only in her individual capacity, further distributions and payments from the estate were stayed pending resolution of this matter.
In Count I of the complaint, the brothers alleged:
5. It appears from the face of the Will, and the facts known by plaintiffs, that defendant, Lorraine Cannici, caused the decedent, Mary B. Garruto, to sign the Will as the result of fraud upon the said Mary B. Garruto.
6. It appears, on the face of the Will, that there is an unnatural disposition of the Estate of Mary B. Garruto, and that the plaintiffs have been denied a share of the Estate of their sister as the result of fraud.
The allegations of the Second Count of the complaint, which also alleged fraud in very similar terms, are no more specific than those contained in the First Count.
In support of the brothers' claims, Felix asserted, essentially, that because Mary lived with the brothers in the family home for fifty-six out of her sixty-two years and owed him both love and respect, he had a reasonable expectation of the twenty percent of Mary's estate that Mary had promised him, and that he would have received the bequest but for Cannici's fraud. However, when Felix was asked in a deposition given in the matter*fn3 what was "wrong" with the will, he responded, variously, that he didn't believe that, in her mental state, Mary was capable of signing it; that his absence from the disposition of property "wasn't logical"; and that that Mary "was not thinking straight when she made that Will." Yet, ...