On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0219-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
In this probate matter, petitioner Wilbert Lunsford appeals from an order entered on April 5, 2007, directing him to vacate ten days prior to sale the third floor apartment of the property belonging to the estate located in Newark, New Jersey. The order also directed him to continue to pay one-half of the utilities, house expenses and property taxes until the sale. On April 20, 2007, petitioner filed a notice of lis pendens preventing the sale of the property.
Dorothy Lunsford died on July 22, 2004, having executed a Last Will and Testament in 1999. She had four children, two of whom are the parties to this appeal. Her will stated that "for reasons known to both" one dollar was left to her daughter, Verdell Marie Lunsford, whose last known address was Payton, Ohio. The decedent left nothing to petitioner because, according to her will, she "allowed him to live rent free at [her] house for close to fifty. years." She left all bank accounts to respondent, Doris Hayes, and the building at 575 South 12th Street, Newark, New Jersey to respondent and the decedent's other son, John Lunsford, Jr.. John predeceased the decedent in February 2001 leaving two children. The will named John Lunsford, Jr. as executor and petitioner as the alternate executor. According to respondent, after funeral expenses, all that remained in the estate was the building in Newark.
Both respondent and petitioner were living in the building with their mother at the time of her death. Although petitioner had a copy of the decedent's will, he failed to submit it for probate. He claimed this failure to act was due to grief over the death of his mother. In October 2006, more than two years after her mother's death, respondent was successful in her application to be named Administratrix C.T.A. of the estate. Although petitioner opposed this application, he did not raise the issue of undue influence. Four months after the decision he filed an order to show cause and verified complaint alleging that his sister, Doris, had exerted undue influence over their mother, the decedent, causing their mother to leave everything she owned to Doris.*fn1 Petitioner certified that one month after Doris moved back to New Jersey from Texas, when the decedent was in the hospital, Doris retained an attorney to prepare a will which she then brought to the hospital for their mother to sign. Petitioner claimed that the decedent was medicated and unaware of the contents of the will. Petitioner claimed that it was completely out of character for the decedent to leave her estate to only two of her four children. He also claimed that after his mother signed the will, she became ill repeatedly after being over-medicated by Doris. He claimed he reported this mistreatment to Adult Protective Services. All of the information alleged by petitioner was known by him at the time he opposed his sister's application to be named Administratrix C.T.A.. On appeal, petitioner claims that his sister Doris actually caused the death of their mother.
On appeal, petitioner alleges the trial court erred in (1) applying the entire controversy doctrine to his complaint; (2) failing to recognize the rules of professional conduct; (3) failing to recognize that two contradictory arguments cannot be made in good faith; and (4) failing to relax the time for his application.
Petitioner's claim of undue influence should have been raised at the time of his first appearance in court. He knew that he was left nothing under the will and he knew that his sister Doris, the respondent, had been administering medication to their mother. The entire controversy doctrine requires that the adjudication of a legal controversy occur in one litigation, in only one court. Under the doctrine, all parties involved in a litigation should present in that proceeding all claims and defenses related to the underlying controversy. The entire controversy doctrine encourages comprehensive and conclusive determinations, avoidance of fragmentation, and the promotion of party fairness and judicial economy. R. 4:30A (2008). See generally, Falcone v. Middlesex County Med. Soc., 47 N.J. 92 (1966); Bonaventure Intl., Inc. v. Spring Lake, 350 N.J. Super. 420, 440 (App. Div. 2002); Kopin v. Orange Prod., Inc., 297 N.J. Super. 353, 374 (App. Div. 1997).
Petitioner's counsel maintains that raising a claim of undue influence at the time he was arguing that his client should remain as executor under the will would be a violation of RPC 3.3 in that he had insufficient proof at that time that respondent had played a role in their mother's death. Thus, counsel argues that until some type of proof was adduced through a private investigator, such a claim would have been "akin to asserting something false." We note that he made the claim on appeal although lacking any evidence in support of that claim. Petitioner's claim of undue influence, however, does not depend on such an allegation. Undue influence generally 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." In re Niles Trust, 176 N.J. 282, 299 (2003), citing Haynes v. First Nat'l State Bank of New Jersey, 87 N.J. 163, 176 (1981) (internal quotations and citations omitted). If petitioner believed that respondent exercised some form of undue influence over the decedent, that claim could and should have been raised by petitioner at the time respondent filed her application to be named Administratrix C.T.A. of the estate.
Petitioner also contends the court failed to acknowledge that two contradictory arguments cannot be made in good faith. Counsel is permitted to argue inconsistent positions. He could have raised the issue of undue influence while also seeking to remain executor of the will. Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501, 526 (App. Div. 2001) (illustrating the general proposition that alternative and inconsistent pleadings are permissible). See also R. 4:5-2 (2008) (stating "relief in the alternative or of several different types may be demanded"); R. 4:5-6 (2008) (stating that a party may set forth more than one statement of a claim or defense alternatively or hypothetically, regardless of their consistency and whether based on legal or on equitable grounds, or both).
We have carefully considered the arguments advanced by the parties and affirm substantially for the reasons expressed by Judge Renee J. Weeks in her oral opinion of April 5, 2007.