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In re Estate of Towbin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2009

IN THE MATTER OF THE ESTATE OF DONALD TOWBIN, DECEASED.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County, Docket No. 2008-0676.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2009

Before Judges Sapp-Peterson and Alvarez.

Defendant Anna M. Towbin (Towbin) appeals a July 16, 2008 order discharging a caveat to the last will and testament of Donald Towbin, admitting the will to probate, and dismissing Towbin's counterclaim. We affirm.

On July 8, 2003, Towbin signed an ante-nuptial agreement with the decedent, who signed the agreement the following day. Both parties were represented by counsel during negotiations. The text of the agreement refers to the parties' exchange of discovery, and schedules are attached as to each party's assets and liabilities. The decedent's income tax return for 2002 is also attached. The parties married on July 8, 2003.

Donald Towbin died on March 9, 2008. On March 31, 2008, Towbin filed the caveat to his last will and testament. Thereafter, the executor filed an order to show cause and verified complaint seeking, among other relief, discharge of the caveat and admission of the decedent's will to probate. Towbin's counterclaim sought to void the prenuptial agreement and requested that she be permitted to take a surviving spouse's elective share pursuant to N.J.S.A. 3B:8-1 to -19.

On July 16, 2008, the trial court considered the pleadings, briefs, and oral argument of counsel, and entered an order (1) discharging the caveat; (2) admitting to probate the decedent's last will and testament dated April 16, 1999; (3) ordering Towbin to make the home in which she had lived with the decedent, titled solely in his name, available for inspection by the executor or his representatives; (4) authorizing Towbin to permit the executor and/or his representatives to remove personal property; (5) requiring Towbin to vacate the realty within ninety days; and (6) authorizing Towbin to retain an automobile in the decedent's name and directing the executor to transfer title of the vehicle to her. Because the court omitted an explicit dismissal of the counterclaim, a remand order was subsequently issued for that purpose even though dismissal was implicit in the decision. Thereafter, an amended order was signed specifically dismissing the counterclaim.

Towbin's points on appeal are as follows:

POINT I

THE TRIAL COURT ERRED WHEN IT DISMISSED THE APPELLANT'S CAVEAT AND COUNTERCLAIM WITHOUT HAVING HELD A PLENARY HEARING TO ADDRESS THE MATERIAL FACTS IN DISPUTE.

POINT II

THE TRIAL COURT ERRED BY PROCEEDING WITH SUMMARY JUDGMENT IN CONTRAVENTION OF [R. 4:67-5].

POINT III

THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S COUNTERCLAIM WITHOUT RESPONDENT HAVING FILED A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.

Towbin's first contention is that genuine issues of material fact were raised in the pleadings and her certification such that a plenary hearing should have been conducted. This action was brought pursuant to Rule 4:67 as a summary proceeding. Rule 4:67-5 provides that "[i]f no objection is made by any party . . . or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon." Specifically, Towbin claims that the language in the section of the ante-nuptial agreement captioned "Mutual Waiver of Estate Rights" was drafted to mean that she waived the right to an elective share only in the event of a separation and death or divorce and death. This language, Tobin asserts, gives rise to a genuine issue of material fact. The relevant section states:

In the event of a separation or divorce and in the event of either party's death, each party does hereby waive, relinquish, and release any and all right, claim or demand of every kind, nature and description he or she might otherwise acquire, or have at any time hereafter, in or against the estate of the other, by reason of any subsequent marriage to each other, including rights under community property laws, or as surviving spouse, whether by way of intestacy, dower or courtesy, or rights in the nature of intestacy, dower or courtesy, or any other right of the surviving spouse to share in the estate of the other or to receive any allowance or exemption from the estate of the other, or any right to elect to take against the will of the other under N.J.S.A. 3B:8-1 et seq. or any other similar statute, or the right to take an elective share pursuant to N.J.S.A. 3B:8-1 et seq. or any other similar statute, or the right to act as administrator or administratrix of the estate of the other.

We read the agreement, as did the trial judge, as applicable not only in the event of separation or divorce, but also in the event of a death while the parties were married and residing together. In support of that interpretation, we rely upon, among other things, the preamble to the agreement, which declares the intent to limit claims by either party against the other's estate. The preamble states that the agreement is "in lieu and in full discharge, settlement and satisfaction of any interest, rights and claims that otherwise each might have or could have, under the law, in and to the property and estate of the other, both before and after the other's death." Cohabitation at the time of death was not intended to affect this relinquishment of rights.

In fact, the reading suggested by Towbin would make the agreement meaningless because a divorce and death and separation and death void a spouse's entitlement to an elective share. N.J.S.A. 3B:8-1. Here, the disputed language does not create a genuine issue of material fact.

Towbin contends that a second genuine issue of material fact exists because the decedent did not include in his will the payment schedule of bequests to her set forth in the ante-nuptial agreement; rather, the payment obligation was included in a separate trust document. The schedule provided that Towbin would receive $10,000 for the first full year of marriage, $12,000 for the second through sixth full years of marriage, and $10,000 for each subsequent year of marriage. Towbin does not explain why the decision to direct payments in the trust instead of the will creates an issue of material fact. The source of the funds is irrelevant so long as the terms of the decedent's obligation are satisfied. Counsel cited to no authority that requires payments to be made from the will, nor did counsel cite any prejudice suffered by Towbin resulting from payments being made from the trust.

Towbin also objects to the resolution of the matter by way of summary proceedings. She concedes that probate matters are usually tried as summary actions in accord with Rule 4:67-5 and Rule 4:83-1. She did not object to proceeding in that fashion. Because the are no genuine issues of material fact, and she did not complain to the trial judge, she cannot be heard to object at this late date.

Towbin filed a certification, whereas the executor merely filed a verified complaint and order to show cause. Towbin argues that as a result, the only actual evidence before the trial court that it could properly consider were the factual assertions in her certification. In that document, she claims that she did not understand that the ante-nuptial agreement would apply even if the decedent died while the parties were living together. Towbin further states that had she known this, she would not have signed the agreement.

Obviously, the executor cannot factually dispute Towbin's assertions as to her state of mind, but more is required than the bare allegations Towbin makes in order to defeat the clear language and stated purpose of the agreement. Towbin was represented. She does not dispute that the decedent made full disclosure. Furthermore, she is not entitled to favorable inferences such as would have been extended to her had she been opposing a motion for summary judgment. O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998).

Lastly, Towbin asserts that the court erred by dismissing the counterclaim in the absence of a specific motion by the executor to dismiss for failure to state a claim. In her counterclaim, Towbin demanded judgment declaring the ante-nuptial agreement void. When asked during oral argument why the will should not be probated, Towbin's counsel cited the ante-nuptial agreement as a bar to probate. Accordingly, the executor did not need to file a specific motion to dismiss the counterclaim. It was indeed, as the executor points out, a "formality," which would not have made any difference to the adjudication of the issues in dispute.

The context within which we consider Towbin's arguments is N.J.S.A. 37:2-38, which in relevant part, squarely places the burden of proof to set aside a premarital agreement upon "the party alleging the agreement to be unenforceable." Furthermore, the party must meet his or her burden by clear and convincing evidence. The grounds for challenge are enumerated in the statute and include equitable considerations, such as unconscionability of an agreement, failure to disclose and similar concerns. N.J.S.A. 37:2-38. Defendant's proofs fall far short of clear and convincing, and none of her claims are equitable in nature. Hence the summary proceeding engaged in was an appropriate forum for resolution and the outcome.

Affirmed.

20090707

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