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In re Estate of Vicinio

May 10, 2010

IN THE MATTER OF THE ESTATE OF PHILOMENA VICINIO, DECEASED.


On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. 174577.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 14, 2010

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Defendant Peter Vicinio appeals from an order that removed him as executor of the estate of his mother and voided inter vivos transfers of virtually all of her estate to him based on the finding of undue influence. We affirm.

Ninety-one-year-old Philomena Vicinio passed away testate on October 11, 2007, leaving her daughter Roseann Pakay and appellant as beneficiaries.*fn1 On March 4, 2008, Roseann filed a complaint alleging breach of fiduciary duty, negligent misrepresentation, fraud and unjust enrichment and seeking to remove and replace appellant as the executor of the estate and void inter vivos transfers of liquid assets and real estate from Philomena to him. Appellant filed an answer to the complaint.

After a three-day bench trial, Judge John A. Peterson, Jr. placed his findings of fact, credibility assessments, conclusions of law and decision on the record on April 21, 2009, memorialized in an order of the same date. He found appellant had exercised undue influence over Philomena and thus entered an order in favor of Roseann, naming her executrix and returning the transferred assets to the estate. This appeal ensued.

Appellant concedes that a confidential relationship existed between him and his mother, but argues the trial court erred in finding he did not adequately rebut the presumption of undue influence. Specifically, appellant argues the presumption was rebutted in light of the competent and disinterested legal counsel Philomena received from two separate attorneys, John Jorgensen and Kenneth Bieg, who purportedly advised her to transfer her entire estate to him as part of an asset protection plan. He alternatively argues that the judge erred in failing to award him a proper credit for his substantial work on Philomena's real estate ("the Kenilworth property") and for his mileage to and from the property. We affirm substantially for the reasons articulated by Judge Peterson in his comprehensive oral opinion. R. 2:11-3(e)(1)(A)&(E). We add the following comments.

Philomena had lived with her husband at the Kenilworth property, a duplex, for fifty-three years. In May 2002, her husband suffered a stroke, was hospitalized, and died three months later. Her mental and physical health then began to deteriorate and she began to suffer the early effects of Alzheimer's.

While her husband was in the hospital, Philomena moved in with Roseann and her family. She then moved in with appellant and his family in November 2002, and remained there until June 2006, when she moved back in with Roseann. Unfortunately, during the time Philomena lived with appellant, he and Roseann's relationship became strained due to his perception that he was shouldering the entire burden of caring for their mother and Roseann's frustration over his interference with her ability to visit their mother at his house.

On April 7, 2003, Jorgensen prepared and witnessed a will that Philomena executed, bequeathing her estate to both children in equal shares. Philomena's estate consisted of the Kenilworth property, as well as liquid assets in the form of checking and savings accounts and annuities totaling about $150,600.*fn2 Within a few weeks, she met with Bieg to discuss estate and Medicaid planning, and he recommended that she begin transferring assets to both of her children. However, despite Bieg's recommendation and unbeknownst to Roseann, in May 2003, Philomena transferred all of her liquid assets into appellant's name.

On or about June 1, 2004, Philomena again met with Bieg and deeded the Kenilworth property to appellant alone for the sum of $1. Appellant submitted the certifications of Bieg and his legal assistant, in which they both attested that Philomena was of sound mind and fully competent when the deed was executed. However, appellant did not mention to Bieg that he had submitted a May 25, 2004 certification to the court that Philomena was "legally deaf, []partially blind... and suffer[ing] from Alzheimer's." Moreover, two days after the deed was executed, appellant testified at a court hearing*fn3 that Philomena was "totally incompetent" and "doesn't remember [for] more than minutes." Appellant did not inform anyone, including the court, that his mother had just transferred the balance of her estate to him two days before. Roseann did not become aware of the transfer of the property until two years later.

At trial, appellant testified that both his parents had expressed a desire to disinherit Roseann, despite the contents of their wills. He also claimed the inter vivos transfers were made pursuant to an asset protection plan and attempted to explain the fact the transfers were at odds with the estate planning advice given by attorneys to make gifts to both children and Philomena's April 2003 will.

The judge made extensive credibility findings, expressly discrediting appellant's testimony. The court found that "there were so many [of appellant's] statements... not corroborated by any [other] independent testimony, evidence, or documents" and "[t]here were clearly numerous instances of incredible testimony, misrepresentations of other items in evidence, and bare allegations that were not corroborated in any way by any of the other witnesses in the case or writings entered into evidence through both counsel." The court further found appellant's own admissions as to his mother's "vulnerability, exploitation, lacking capacity, her weakness and dependence all support a presumption of undue ...


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