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In re Estate of Phillips

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 27, 2008

IN THE MATTER OF THE ESTATE OF BOBBY R. PHILLIPS, DECEASED.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-233-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2008

Before Judges Sabatino and Alvarez.

Plaintiff, Betty Napolitano, appeals from an order dismissing her June 11, 2007, complaint which sought to set aside a judgment admitting the will of her brother, Bobby R. Phillips, to probate. We affirm.

Phillips died on March 22, 2006, leaving a will dated May 16, 2002. It was admitted to probate, and Hazel Sterner, the principal beneficiary of the estate, was appointed executrix, on April 7, 2006. Paul W. Ross, Esq., who prepared the will, represented the estate. On April 10, 2006, he forwarded notice of probate, a copy of the will, and letters testamentary to plaintiff via ordinary mail at her last known address.

Soon after, plaintiff called Ross's law office, and asked if a copy of the will could be forwarded to Daniel Shapiro, Esq.; it was sent to him on April 12, 2006. Thereafter, on November 3, 2006, a second attorney, Elizabeth M. Trantina, wrote to Ross, acknowledged receipt of the notice of probate, and in the letter specifically referred to the anticipated devise of 444 Broad Avenue, Palisades Park, New Jersey. Ross answered the letter, exchanged phone calls, and then apparently heard nothing more from that firm either. On February 13, 2007, plaintiff, now represented by a third law firm, initiated an action in Chancery, later transferred to the Law Division, as to ownership of 444 Broad Avenue.

Plaintiff and her brother were in the upholstery business together at 444 Broad Avenue until 1982, when Phillips purchased his sister's interest. According to Ross, in 1998, Phillips brought a lawsuit against plaintiff concerning a separate joint business venture. It is alleged by Ross, and not disputed by plaintiff, that Phillips prevailed, and in fact, Phillips obtained a judgment against his sister requiring her to account for business income. Ross, who represented Phillips in that proceeding, claims that plaintiff and decedent were not on good terms before the lawsuit, and that the relationship did not improve with time. Decedent continued to operate the upholstery business from 1982 until his death.

Plaintiff alleges that during the pendency of her Law Division action, she discovered various documents which establish Sterner's undue influence over Phillips, Sterner's dissipation of his assets prior to his death, and his lack of testamentary capacity. This newly discovered information, she claims, creates an "exceptional situation" within the meaning of Rule 4:50-1(f) such that she should not be time-barred from pursuing a will contest pursuant to Rule 4:85-1. "The application of this subsection [R. 4:50-1] requires the demonstration of 'exceptional circumstances.'" In re Estate of Schifftner, 385 N.J. Super. 37, 41 (App Div.) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)), certif. denied, 188 N.J. 356 (2006).

Rule 4:85-1 states that once a will is probated, and letters testamentary issued, as was the case here, "any person aggrieved by that action may, upon the filing of a complaint . . . obtain an order requiring the personal representative . . . to show cause why the probate should not be set aside . . . provided, however, the complaint is filed within four months after probate." It goes on to state that where relief from the time bar is sought under Rule 4:50-1(f), the complaint "shall be filed within a reasonable time." Therefore, so contends plaintiff, due to her belated discovery of Sterner's misconduct, she should be permitted to proceed.

Rule 4:50-1(f) affords a litigant relief from a judgment only in exceptional cases in order to achieve equity and justice. Court Invest. Co., supra, 48 N.J. at 341. Motions pursuant to the rule are "addressed to the discretion of the trial court," and will not be set aside "in the absence of an abuse of its discretion." Ibid. We agree with the motion judge that this case does not present such a situation.

We first consider that the documents included in plaintiff's appendix in support of her allegation of undue influence and dissipation of assets date in the main from the years 1981 to 1999. They include items such as her own cancelled checks from the early 1980s paid to assist Phillips with his medical bills, copies of the wills of other relatives who died prior to Phillips, and Sterner's pharmacy receipts from 2005 (virtually the only post-1999 documents), all strikingly irrelevant to any claim of undue influence. It no doubt weakened plaintiff's cause, and her credibility, that in her affidavit in support of the verified complaint she alleges that she was unaware that Phillips had made a will, and that she was not served a notice of probate until March 14, 2007. Factually, there is nothing in the claimed recently garnered information that constitutes an exceptional situation.

Furthermore, plaintiff offers no legitimate explanation for her delay in challenging the will. After all, most of the items submitted, such as plaintiff's own cancelled checks, or copies of previously probated wills, were available to her prior to discovery in the pending litigation regarding 444 Broad Avenue. The facts upon which her claims are based were known to her prior to Phillip's death, and could have been readily asserted when the will was offered for probate. In re Small, 85 N.J. Super. 220, 225 (App. Div. 1964). Accordingly, plaintiff has not established any circumstance, much less an exceptional circumstance, which justifies an exception from the four-month limit pursuant to Rule 4:85-1.

Finally, even if the documents substantiated plaintiff's allegations, which they do not, it is not so clear that claims of undue influence and lack of testamentary capacity are exceptional circumstances which fall within Rule 4:50-1(f)'s catchall provision. In re Karamus, 190 N.J. Super. 53, 59 (App. Div. 1983); Small, supra, 85 N.J. Super. at 225. As the motion judge noted, relief from the Rule's four-month time bar has been granted where plaintiff is an infant, or where an interested party was not given notice of the will's admission to probate. See Karamus, supra, 190 N.J. Super. at 59-60; see also In re Estate of Green, 175 N.J. Super. 595 (App. Div. 1980). Obviously, neither exception is applicable here.

We agree with the motion judge that Sterner's failure to file a timely proof of mailing as required by Rule 4:80-6, within ten days of the mailing of notice of probate to all interested parties, was not fatal. As the judge said, because plaintiff had actual notice of probate and of the terms of the will, the failure to file the requisite proof of mailing was "inconsequential." In light of plaintiff's inability to establish exceptional circumstances as required by Rule 4:50-1(f), the dismissal is affirmed.

Affirmed.

20080627

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