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Wolpin v. Wolpin

March 23, 2010

LORETTE WOLPIN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
MILES D. WOLPIN AND CARL WOLPIN, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-126-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2010

Before Judges Rodríguez, Reisner and Chambers.

The parties to this litigation are plaintiff Lorette Wolpin, the second wife of Arthur Wolpin, and defendants Miles D. Wolpin and Carl Wolpin, the sons from Arthur Wolpin's first marriage. They dispute the right to the proceeds from the sale of a condominium that had been owned by Arthur Wolpin, who is now deceased.

At the conclusion of the trial, the trial judge found that the 1984 recorded mortgage on the condominium in the sum of $180,000, given by Arthur Wolpin to his sons, was a valid inter vivos gift and enforceable. He determined that the 1987 deed which purported to convey the condominium and Arthur Wolpin's interest in a cabana to the sons was an incomplete inter vivos gift and not enforceable. He further held that defendants' rights under the deed would have been extinguished when plaintiff sold the property to a bona fide purchaser for value. He also concluded that the 1994 deed executed by plaintiff pursuant to a power of attorney from Arthur Wolpin in which she conveyed the condominium and Arthur Wolpin's interest in a cabana to herself was enforceable, finding that the transfer had been subsequently ratified by Arthur Wolpin. Judgment was entered in favor of defendants for $180,000 plus prejudgment interest, and the balance of the claims were denied.

Both sides appeal. We affirm the trial judge's determination that the 1984 mortgage is enforceable and that the 1987 deed is not enforceable. We disagree with the trial judge's conclusion that the 1994 deed is enforceable. We do not reach the question regarding the effect the sale of the condominium to a bona fide purchaser for value would have had on the 1987 deed if that deed had been found enforceable.

I.

These are the pertinent facts. In April 1984, Arthur Wolpin, an attorney, purchased a condominium unit in Long Branch in his name for the sum of $206,800. At the time, he had been married to plaintiff, his second wife, for about four years. This condominium was their marital home until Arthur Wolpin died in 2006 at the age of ninety-nine.

At the time of the purchase, Arthur Wolpin executed a mortgage in the sum of $180,000 on the condominium unit in favor of defendants, his sons from his first marriage. He recorded the mortgage on April 12, 1984. This mortgage did not represent any underlying debt from Arthur Wolpin to his sons. Defendant Carl Wolpin testified that his father had sent him the original mortgage in April 1984, and three or four weeks later asked him to send the original back; a note from Arthur Wolpin indicates that he understood his son had a copy of the mortgage.

Carl Wolpin also testified that his father said that he had executed and recorded the mortgage because "he wanted to leave us something and it was a gift for the kids and the grandchildren." The mortgage was never discharged during Arthur Wolpin's lifetime.

Three years later, in July 1987, Arthur Wolpin prepared and executed a deed granting the condominium and use of a cabana to his sons but retaining a life estate for himself and providing that the conveyance did not merge with any mortgage. He also executed at that time an Affidavit of Consideration for tax purposes indicating that the only consideration for the deed was the nominal sum of $100. While he did not record this deed, he placed the original deed with his sons. Defendant Carl Wolpin testified that his father told him to keep the deed in a safe place and "not to act upon it unless he was, basically terminally ill or dead." He stated that his father made this request because "he was scared of Lorette [plaintiff]." The deed remained in his sons' possession until this litigation.

Thereafter, Arthur Wolpin executed a number of wills, namely four typewritten wills and two holographic wills. Specifically, on April 5, 1988, he executed a typewritten will leaving the condominium and cabana to his wife and, after a number of other bequests, bequeathing to her seventy percent of his residuary estate and to his sons the remaining thirty percent.

However, this typewritten will was quickly revoked a few months later by a holographic will dated July 12, 1988. Arthur Wolpin sent the July 12, 1988, holographic will to his son Carl Wolpin. In that will, Arthur Wolpin explained that he was writing a holographic will because his spouse, who had typed his earlier will, had inserted a second page increasing a bequest and that "it can hardly be called the testator's will, free from undue influence and pressure." In the 1988 holographic will, he left his wife a life estate in the condominium and cabana and left his residuary estate to his ...


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