March 27, 2008
IN THE MATTER OF THE ESTATE OF GEORGE C. MCGUIRE, DECEASED.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, CH-1451051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing and R. B. Coleman.
Robert W. McGuire, the son of decedent George C. McGuire, appeals from a January 25, 2007 order denying his motion for reconsideration of the denial of his December 14, 2006 motion to vacate an order of distribution entered in accordance with the January 29, 2001 Codicil to George's Last Will and Testament. Having considered the record in light of the contentions advanced by the parties on appeal, we affirm.
On July 11, 2001, the Ocean County Surrogate's Court admitted the Last Will and Codicil (the Will) of George C. McGuire to probate. On May 5, 2003, Cynthia Nowicki, the Executrix of the Estate, filed a verified complaint seeking a judgment directing distribution of the Estate in accordance with the Will and, if necessary, the depositing of Robert's twenty-five percent share into the Surrogate's Intermingled Account. The next day, the court entered an order that required Robert to show cause on June 19, 2003, why an order should not be entered providing for the deposit of his share of the Estate into the Surrogate's Intermingled Account or the Unclaimed Property Division of the State of New Jersey. Robert filed an Answer and Counterclaim seeking a formal accounting, and on June 19, 2003, the court granted Robert's attorney the opportunity to take discovery.
Interrogatories served on the Estate were answered in due course but after Robert and his attorney failed to request a hearing on the matter, Nowicki asked the court to sign the Order for Distribution. Thus, on October 21, 2003, the court entered an order directing that Robert's share of the distribution be deposited into the Unclaimed Property Division of the State of New Jersey, based on his refusal to sign the appropriate release and refunding bond. The shares of all other beneficiaries under the Will were distributed upon their execution of the releases and bonds.
Nearly three years later, in May 2006, Robert filed a motion to vacate the October 21, 2003 order, alleging undue influence in the execution of the Will. Following due consideration, the court entered an order dated December 15, 2006, denying Robert's motion. Subsequently, Robert filed the motion for reconsideration that is the subject of this appeal.
We affirm substantially for the reasons stated by Judge John A. Peterson in open court on January 25, 2007. In short, the movant failed to provide any substantiation of his suspicion concerning undue influence in the execution of the Will and Codicil. The suspicion appears to be predicated solely on the fact that bequests were made to the testator's son (twenty-five percent) and to four unrelated women, who were allegedly testator's mistresses or family members of former mistresses. Yet, the record is utterly devoid of any evidence supporting Robert's allegations that George's Will was the product of undue influence.
It is generally presumed that a testator is of sound mind and competent when executing a will. Haynes v. First Nat'l Bank of N.J., 87 N.J. 163, 176 (1981). However, a will may be overturned if tainted by undue influence. Ibid. In In re Niles Trust, the Court generally defined undue influence as "mental, moral or physical exertion which has destroyed the free agency of a testator [or settlor] by preventing the testator [or settlor] from following the dictates of his own mind and will and accepting instead the domination and influence of another." 176 N.J. 282, 299 (2003) (quoting Haynes, supra, 87 N.J. at 176). The Court has articulated that:
The burden of proving undue influence lies upon the contestant unless the will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent. [In re Rittenhouse's Will, 19 N.J. 376 378-79 (1955).]
Robert asserts "that there is evidence of undue influence because the testator was a sickly individual who was dependent upon others for the necessaries and comforts of mind and body and could easily be importuned by those who surrounded him." Robert further asserts that his father "was physically weak and sick and being cared for by one of the beneficiaries in her capacity as a nurse." Such allegations are unsubstantiated in the record. The extent of proof offered by Robert is a single line in a certification that George was sick during the years prior to his death. Contrary to Robert's unsupported assertions, George's decision to leave a substantial portion of his estate to individuals that were, to all appearances, objects of his affection, though not his blood relatives, does not without more, bespeak undue influence. Robert did not discharge his burden.
Moreover, R. 4:49-2 provides that "a motion for . . . reconsideration . . . shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." In Cummings v. Bahr, we noted the following:
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence . . . .
Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration. [295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).]
In the present case, the court properly denied Robert's motion for reconsideration. Based on the record and briefs presented to us, Robert has not demonstrated that the court reached its decision upon an irrational basis or that the court overlooked competent evidence. The only evidence presented for reconsideration that had not been presented earlier was a piece of correspondence from the Deputy Attorney General, which was acknowledged by the court. In that correspondence the Unclaimed Property Administrator (UPA) acknowledged that he is holding property that was the subject of the October 21, 2003 order. The court remarked:
Since the UPA is a stake holder in this matter, he takes no position concerning the jurisdictional, procedural, or substantive issues raised in this proceeding and will either deliver through claims process established by N.J.S.A. 46:30B-77 or continue his retention of the property pursuant to N.J.S.A. 38-23, 21 and 46:230B-37.1 [sic] as determined by the Court.
In other words, the funds are still available to Robert by resort to the Unclaimed Property Division.
Lastly, we note that Robert's arguments relating to George's signature on the Will and Codicil and the preparation of those documents are unsupported in the record and do not require a written opinion. R. 2:11-3(e)(1)(E).
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