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In re Estate of Newbery

March 26, 2010

IN THE MATTER OF THE ESTATE OF RICHARD NEWBERY, DECEASED


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 21179.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically March 8, 2010

Before Judges Rodríguez and Reisner.

June Wisniewski (Wisniewski or plaintiff) appeals from a September 19, 2008 order of the Probate Part dismissing her verified complaint and order to show cause asserting claims against the following parties: Linda A. Hilton, the former administratrix of the Estate of Richard Newbery, Hilton's surety Selective Insurance Company of America, Richard Greenberg, Esq., who drafted Newbery's will and later represented Hilton in an action to probate the will, and the law firm of Greenberg and Schulman. We affirm.

I.

These are the most pertinent facts. In May 2004, Richard Newbery, who was in his late sixties and suffering from Parkinson's disease, retained Linda Hilton, an accountant, to prepare his taxes. Thereafter, they became close friends. In September 2005, when Newbery was ill and hospitalized, he wished to have a will prepared and he asked Hilton to recommend an attorney. She recommended Greenberg, who was not a personal friend but with whom she had previously worked on an uncontested estate. When Greenberg met with Newbery outside Hilton's presence, Newbery advised him that since he had no relatives, other than several cousins he had not seen in decades, and Hilton was his good friend, he wished to leave his entire estate to her. At that point, according to Greenberg's testimony, he questioned Newbery extensively and determined that he was alert and clearly not incapacitated. He also closely questioned Newbery to be sure that he wanted to leave all of his assets to Hilton, as opposed to family members.

Nonetheless, to guard against any possible later claim of undue influence, after Greenberg prepared the will he brought another attorney with him when he met with Newbery to have him review and sign the document. At that meeting, on October 20, 2005, both attorneys observed that Newbery was incapacitated due to his illness and they rescheduled the appointment. However, Newbery died before Greenberg and the other attorney could meet with him again.

Hilton sought and obtained appointment as the administratrix of Newbery's estate. Thereafter, represented by Greenberg, she sought to have the unsigned will admitted to probate. Hilton contended that pursuant to N.J.S.A. 3B:3-3, the unsigned will could be probated if she could prove by clear and convincing evidence that Newbery intended it to constitute his will. After an initial hearing on February 24, 2006, at which none of Newbery's relatives appeared, the court admitted the will to probate, subject to Greenberg providing further proof that all of the cousins had been served with the probate complaint.

Subsequently, plaintiff and several other cousins appeared in the action, represented by counsel, and filed a summary judgment motion opposing admission of the will to probate. By order dated August 25, 2006, the court changed its prior ruling and determined that Newbery's will would not be admitted to probate.*fn1 The court also appointed one of plaintiff's attorneys, Lawrence Rosa, to serve as estate administrator in place of Hilton.

Parenthetically, while Hilton was still administratrix, Champion Mortgage had filed a foreclosure action, contending that the mortgage on Newbery's house was in default. As was required by foreclosure law, the complaint named, among other defendants, June Wisniewski and Newbery's other living relatives, as well as Hilton in her fiduciary capacity. Consistent with her responsibility as the estate's fiduciary, Hilton, represented by Greenberg, vigorously defended the estate against the foreclosure action.

In August 2006, after Rosa's appointment as administrator, Greenberg and Hilton filed an application seeking fees and commissions from the estate in connection with the probate litigation, for other services rendered to the estate, and for services Hilton rendered to Newbery before his death. On January 18, 2007, the Probate Part judge entered an order awarding fees and commissions. Significantly, that order recited that "counsel for all parties" had "been served" with the application and had "achieved an agreement with respect to amounts to be paid pursuant to the within motion." The judge also noted "consent" on the last page of the order.

At oral argument of this appeal, Wisniewski conceded that at the time the January 18, 2007 order was entered, she was represented by counsel. Although she advised us that she personally did not agree with the award, she did not dispute that her attorney consented to the order. Moreover, she received a copy of the January 18, 2007 order and did not appeal from it.

On August 27, 2007, Rosa filed a verified complaint seeking the court's approval of his final estate accounting. By order dated October 15, 2007, the court approved the accounting, including Rosa's fees and commissions, and ordered Rosa to distribute the remainder of the estate to plaintiff and the other heirs. Wisniewski concedes that she received a copy of the October 15, 2007 ...


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