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In re Estate of Varcadipane

March 20, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Passaic County, Probate No. 187436.

Per curiam.


Submitted March 4, 2009

Before Judges Fisher and King.

In this appeal, we consider the validity of James Diminich's claim for reimbursement of funeral and burial expenses allegedly paid by him, and the impact on that claim of a settlement of an earlier dispute in this probate matter. Because the record on appeal does not reveal the judge's rationale for rejecting James's claim, we remand for further proceedings.

Marilyn Varcadipane died in June 2004.*fn1 Her 1992 will was probated by her father, Pat Mei, who was named as executor in the will. On October 20, 2004, James Diminich filed a complaint seeking to set aside the will. James alleged that in 1995 he and Marilyn had entered into an oral agreement, which contained his promises to care for Marilyn, who was then suffering from cancer, and to pay certain household expenses during her lifetime, in exchange for a distribution to him from her estate of $225,000 and a one-year life estate in real property owned by her. James alleged in his complaint a breach of that oral agreement because the probated will did not contain the provisions for which he had bargained.

The enforceability of this oral agreement and the identification of its precise terms were never resolved by the court. Instead, on June 27, 2005, despite the considerable burden James faced in prosecuting that claim, see, e.g., N.J.S.A. 3B:1-4; Klockner v. Green, 54 N.J. 230 (1969), the parties entered into a settlement agreement, which called for, among other things, James's entitlement to fifty-one percent of the estate after the payment of all estate liabilities.

On January 29, 2008, the executor filed a complaint seeking approval of his final accounting and the distribution of the estate. James filed a responsive pleading, asserting his right to be reimbursed from the estate for various expenses allegedly incurred by him both during Marilyn's life and as a consequence of her death. James asserted, as he claimed in his earlier complaint, that he had maintained Marilyn's home and cared for her from approximately October 1995 until her death. In addition, he claimed that he paid expenses "related[d] to [Marilyn's] last illness and her funeral," arguing that these were liabilities of the estate for which he should have been compensated prior to a final distribution of the residuary estate.

On March 7, 2008, the trial judge heard argument, which included a discussion about the impact of the earlier settlement agreement on James's claim for reimbursement. The judge observed that she could not determine whether James's claim to "these [expenses] . . . were resolved [by] the [s]ettlement" absent further documentation. The matter was adjourned to allow for additional submissions.

On May 2, 2008, the adjourned return date, the trial judge concluded that James's claim to reimbursement largely consisted of those expenses that were incurred as part of his oral agreement with Marilyn, which was the subject of the first suit, and were resolved by the settlement agreement. On the other hand, the trial judge recognized that any expenses paid by James for Marilyn's funeral and burial were not barred by the settlement agreement. Referring to the large "stack of documents" submitted by James, the judge indicated she would "take a look . . . but . . . the cemetery and the funeral are the responsibility of the estate," and are "something that should be paid for by the estate."

The record on appeal, however, does not indicate any further decision by the judge; all that followed was the entry of judgment on May 27, 2008. That judgment permitted the payment of the executor's corpus commissions and attorneys' fees, and directed the distribution of the balance of the estate in accordance with the June 27, 2005 settlement agreement. The judgment made no mention of James's claim for reimbursement; we assume, as have the parties, that the absence of any mention of James's claim in the judgment reveals that the judge denied the entirety of his claim.

The judgment's failure to allow for the reimbursement to James of any of the living expenses, as well as Marilyn's funeral expenses, prompted James's appeal. After carefully considering the parties' arguments and the record on appeal, we (1) reject James's argument that he was entitled to be reimbursed for living expenses because of the preclusive effect of the settlement agreement, (2) reject the executor's arguments that James's claim for funeral and burial expenses was precluded by either the settlement agreement, res judicata or the statute of limitations, but (3) remand for further proceedings regarding the funeral and burial expenses.

James's claim turns on the scope of the settlement agreement. That question is largely governed by the nature of James's earlier suit and the alleged terms of his oral agreement with Marilyn. In other words, absent an express provision in the settlement agreement on the precise point in question, we are left to interpret the reach of the settlement agreement by ascertaining the scope of the issues then in dispute.

James's agreement with Marilyn, as described in James's verified complaint in the first suit,*fn2 only required that he care for Marilyn during her lifetime; James did not allege that part of his performance of that agreement required his eventual payment of Marilyn's funeral and burial expenses. As part of the parties' settlement, James's complaint was dismissed; any right to reimbursement from the estate became subject to the settlement agreement. ...

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