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In re Estate of Towbin

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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