On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. 98-225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Evelyn Sykes Zielke (Evelyn) and Gerald W. Sykes (Gerald) are the two children of Jewell B. Sykes (Jewell) and the co-executors of her estate. On behalf of herself, individually and as co-executor of the estate, Evelyn*fn1 challenged the validity of two leases Jewell entered into with a company owned by Gerald that permitted the construction of two telecommunications towers on Jewell's farm and sought the removal of Gerald as co-executor. Following a trial, the court rejected Evelyn's claims that Gerald exercised undue influence over Jewell in obtaining the two leases and that Jewell was mentally incompetent when she entered into the second lease. The court also refused to remove Gerald as co-executor and declined to award counsel fees to Evelyn. In this appeal, Evelyn argues that each of these rulings was error. We affirm.
Jewell executed the leases for the towers on her property on February 15, 1981 and December 6, 1986. The lessor for each of these leases was G&G Communications, a company owned and operated by Gerald.
Gerald lived with his mother in her home on seventy-three acres in Monroe Township from 1976 until she entered a nursing home in 1992. In 1981, Gerald decided to erect a transmission tower to expand the coverage area of his business, which was involved in the transmission of radio signals. He testified that he chose to build the tower on Jewell's property so that she could receive passive unearned income.
According to Gerald, Jewell told him that he did not have to pay her any rent for the tower. However, after consulting with an accountant, Gerald set the rent at $433 per month over a ten-year term because that was the maximum amount that G&G could pay to a "close relative" of Gerald's without arousing the suspicion of taxing authorities. Although Jewell, then seventy-one, was not represented by counsel, it is undisputed that she understood the terms of the lease when she executed it. Gerald unilaterally increased the monthly rent to $508 in 1985 although he stated that the revenue generated by the tower prior to 1987 was "barely enough to pay for the [lease] payment" to Jewell.
In December 1986, Jewell executed a second lease, permitting Gerald to build a second, taller tower on her property. Once again, the lease was drafted by Gerald's attorney and Jewell was not represented by counsel. This lease provided for a monthly payment of $200 over a term of twenty-five years. Although G&G had essentially abandoned the first tower, it continued to make the monthly payments due under that lease. As a result, Jewell received $708 per month for the rental of the two towers. Gerald testified that he explained the terms of the second lease to Jewell and she asked no questions about it.
Jewell had executed a handwritten will in 1965 that divided her estate equally between her two children and named them both as co-executors. In 1987, Evelyn became concerned that Gerald was going to have Jewell execute a secret will that would eliminate her as a beneficiary. She took Jewell to a lawyer who recommended that she prepare a will to replace the handwritten one and referred her to another attorney, Richard Kaser. He interviewed Jewell, then seventy-seven, for approximately thirty minutes to ascertain her mental competence to sign a will. Kaser testified that he was confident that she was competent to do so. Jewell also discussed a power of attorney and living will that she asked Kaser to prepare for her. She subsequently executed the will, which divided her estate equally between her children and named them as co-executors, as well as the power of attorney and living will.
Although Evelyn contests her mother's competence to enter into the lease in 1986, she does not assert that Jewell lacked the mental capacity to make the 1987 will or understand its provisions.
In early 1988, Gerald's attorney retained another lawyer, William J. Golden, as an independent party to meet with Jewell "to make sure she was competent, to make sure there was no question that she was voluntarily entering into these leases [with G&G], to make sure she was doing it of her own free will."
Golden testified about his interaction with Jewell. He met with her in March 1988, found her "alert" and "sharp as a tack" and that she "knew what she wanted to do" with her property. Jewell was aware of the nature and extent of her property and told Golden that no one had exercised any undue influence upon her. She understood that the income she received from the rental of the second tower may have been less than fair market value and that she was giving her son a better deal than if he were a stranger but was satisfied with the rental income. She liked the fact that she would receive income from the lease and that the ...