On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, Docket No. 293502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued by Telephone March 26, 2009
Before Judges Skillman and Grall.
This is an appeal from a final judgment entered on September 3, 2008, which granted summary judgment in favor of plaintiff David Feinsilver, executor of the estate of Bernard Olcott, enjoining defendant Ralph Jan Ward from seeking to contest the January 10, 2007 admission to probate of Olcott's 1997 will and 2004 codicil.
Between 2000 and 2006, Olcott, a New Jersey businessman, made "advances" and loans to Ward, a Bahamian businessman, of $4,255,289 for construction of a luxury condominium and another development project in the Bahamas. The loans were based on 10% notes and secured by mortgages on the properties in the Bahamas. Olcott's 1997 will, as amended by the 2004 codicil, bequeathed his entire estate in equal shares to his three adult children. Olcott died in Hudson County on December 30, 2006.
The 1997 will and 2004 codicil were admitted to probate in the Hudson County Surrogate's Court on January 10, 2007.
During Olcott's final illness, when he was comatose, Ward informed Feinsilver that Olcott had executed a new will in the Bahamas on May 4, 2005, under which Ward was a beneficiary.
Despite repeated requests by Feinsilver for production of this purported new will, Ward failed to send a copy of the will to Feinsilver either before or during the period immediately following Olcott's death. Ward alleges that even though Feinsilver was aware of Olcott's purported new will and Ward's interest in Olcott's estate as a result of that will, Feinsilver failed to give him notice that the 1997 will and 2004 codicil had been admitted to probate in New Jersey.
On January 4, 2008, still without a copy of the purported 2005 will in its possession, the estate filed a verified two- count complaint against Ward, seeking (1) restraints prohibiting him from probating the purported 2005 Bahamian will, and (2)(A) declaring the purported 2005 will and related estate planning documents to be null and void, or, in the alterative, (B) declaring that Ward's opportunity to contest the 1997 will and 2004 codicil had expired six months after their admission to probate, i.e., on July 10, 2007.
On January 7, 2008, the trial court entered an order to show cause, including temporary restraints, requiring Ward to litigate his claims against Olcott's estate exclusively in the Chancery Division in Hudson County and enjoining him from asserting control over any of Olcott's assets. On the return date, the court entered an unopposed order making the restraints permanent, setting the Hudson County Chancery Division as the exclusive court of jurisdiction, and setting a March 14, 2008 deadline, which was later extended to March 27, 2008, for all parties to make claims.
On February 15, 2008, Ward's New Jersey counsel contacted Feinsilver with an offer to present the purported 2005 will to him, and on March 21, 2008, Feinsilver viewed the purported 2005 will for the first time.
Ward filed a certification in opposition to the estate's complaint, which the trial court treated as an answer.
Thereafter, the estate filed a motion for summary judgment. In support of the motion, Feinsilver submitted a certification which alleged that "throughout the period following the January 10, 2007 Probate of [Olcott's New Jersey] will, Mr. Ward acknowledged his awareness of such probate proceedings." In a supplemental certification, Feinsilver alleged:
On June 6, 2007, I had two (2) telephone conversations with Mr. Ward. During these telephone conversations, Mr. Ward told me, among other things, that he was very upset that Thomas P. Bado (the original Executor) had probated Mr. Olcott's 1997 Will (and 2004 codicil) . . . .
The estate also submitted an affidavit by Thomas P. Bado, the original executor, which alleged:
3. In February, 2007, shortly after the Decedent's January 25, 2007 memorial service (to which Ralph Jan Ward sent a representative from the Bahamas), I received a telephone call from Mr. Ward.
4. Mr. Ward placed that February, 2007 telephone call to me to complain about my probating Mr. Olcott's 1997 Will (and 2004 codicil thereto), as he claimed to have advised "everyone" that he allegedly had Mr. Olcott's last will.
5. In response thereto, I advised Mr. Ward that Mr. Feinsilver, as the Estate's attorney, had made multiple requests for a copy of any alleged will in Mr. Ward's possession; that Mr. Ward had refused to produce any alleged will, and that, as a result, to the best of my knowledge, the 1997 Will was the Decedent's last will.
6. I also requested of Mr. Ward that, if he really had such a will, that he should provide Mr. Feinsilver with a copy.
7. Mr. Ward never furnished me with a copy of any will.
In addition, the motion was also supported by an affidavit of Joanna Weingardner, who identified herself as "the officer manager, in house accountant and paralegal of The ...