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In re Buscavage

August 25, 2010

IN RE THE JOSEPH BUSCAVAGE AND HELEN A. BUSCAVAGE LIVING TRUST


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, Docket No. 07-01452.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2010

Before Judges Skillman, Fuentes, and Simonelli.

In this appeal, certain members of the late Joseph Buscavage's family challenge the validity of amendments decedent made to his living trust in the last year of his life. After conducting an evidentiary hearing, the trial court found the amendments valid. We now reverse and remand for further proceedings.

Before addressing the legal question raised here, we will first describe, in some detail, the parties who make up decedent's family, the attorneys retained by decedent to carry out his wishes as to the disposition of his property, and the documents prepared by these lawyers that allegedly reflected decedent's wishes.

I.

Joseph Buscavage (Joseph) died a widower without issue. His closest family members were two sisters: Violet Kubilus (Violet) and a half-sister Margaret Falzone (Margaret). Violet was closer to Joseph in age and resided approximately three hundred miles away from him in Pennsylvania. Margaret was eighteen years younger than Joseph, lived with her mother in Joseph's home until she was eighteen years-old, and currently lives in Somerville, New Jersey.

Joseph's wife Helen Buscavage had three sisters. One sister had a son, Thomas Matalenas (Thomas), who is married to Marian Matalenas (Marian). Thomas and Marian lived four houses away from Joseph in Bound Brook. Helen Buscavage's other sister had a daughter, Mary Ann Wagner (Mary Ann). She lived approximately fifty minutes from Joseph in Pennsylvania and has two daughters, Michelle and Patricia. Helen Buscavage's third sister had a daughter Helen Goodrich, who is married to Henry Goodrich, Sr. They also live in Bound Brook and have four children: Amy, Linda, Pam, and Henry, Jr. Robert Sadukas*fn1 was Joseph's great-nephew, his grandmother was Helen's sister.

On May 1, 1998, Joseph and Helen executed the Joseph Buscavage and Helen A. Buscavage Revocable Living Trust. They named each other as co-trustees, appointed Mary Ann as first successor trustee, and named Helen Goodrich as second successor trustee. Their original distribution of the trust was as follows:

Helen Goodrich 25%

Mary Ann Wagner 25%

Thomas Matalenas 25%

Violet Kubilus 10%

Pam Goodrich 2.5%

Henry Goodrich, Jr. 2.5%

Linda Goodrich 2.5%

Amy Goodrich 2.5%

Patricia Wagner 2.5%

Michelle Wagner 2.5%

They also executed pour-over wills naming Mary Ann as first alternate executrix and Helen Goodrich as second alternate executrix. Through durable power of attorney documents, Joseph and Helen also named Helen Goodrich as first alternate and Mary Ann as second alternate attorneys-in-fact. Attorney G. Jeffrey Moeller prepared all of these documents.

After Helen died in 2001, Joseph made two unchallenged amendments to his trust: one in 2001 and a second in 2003. On October 2, 2001, Joseph amended the distributions of the trust in the following manner:

Helen Goodrich 7%

Mary Ann Wagner 8%

Thomas Matalenas 24% Violet Kubilus 12%

Pam Nilsen*fn2 7%

Linda ...


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