On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Passaic County, Docket No. P-185868.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Wefing, Payne and Baxter.
Francesco Racamato died on November 3, 2003. In his will, executed on March 9, 2002, he directed that in the event that his wife predeceased him, as occurred, his tangible personal property should be distributed to his six children "as they shall agree" and, in the absence of an agreement, as decided by the executor. Additionally, he directed that his residual estate should be distributed in equal shares to the children. Decedent named his son and a daughter, Domenica Racamato Pignatello as co-executors. However, the son renounced his appointment, leaving Pignatello as sole executor. She retained the firm of Hartman & Winnicki, P.C., her parents' former counsel, to provide legal advice.
Claiming that she had only received an informal, inaccurate accounting of the estate's assets, on December 4, 2008, petitioner Marie Victoria Cole (also known as Bruna Maria Racamato Cole), a daughter of decedent who, prior to the death of her parents, became estranged from the family, filed a verified complaint, supporting certification and order to show cause to compel a formal accounting of the assets of the estate and to obtain appointment as executor in place of Pignatello for the limited purpose of administering estate property located in Italy. Following several non-evidentiary hearings, on August 7, 2009, the probate judge, sua sponte, determined to dismiss Cole's action, declaring that it was time-barred under Rule 4:85-1, not having been filed within four months after the will was admitted to probate. However, the judge refrained from signing an order of dismissal. Thereafter, several additional hearings took place at which new counsel for Cole, made further arguments on Cole's behalf. However, they were unavailing, and on December 1, 2009, an order of dismissal was issued. In a letter accompanying the order, the judge stated, in part:
Having reviewed all of the documentation and heard the arguments of counsel, this court is even more convinced that its original decision that was placed upon the record on August 7, 2009 and will be embodied in an Order prepared by Mr. Kummer who is a member of the firm representing the estate and the executrix in this matter was correct. It is crystal clear to this court that both the executrix and counsel attempted to be as fair and reasonable with all of the parties in this matter as was possible under all of the circumstances. A review of Ms. Cole's own certification shows that she acknowledges correspondence with counsel for the executrix back to 2003. She admits to receiving the informal accounting that was prepared in 2004 and still she did nothing to challenge the probate of the estate or the distribution to family members. It is very unfortunate that Ms. Cole and her siblings have a family dispute that is as heartbreaking as the dispute described in her certifications. However, there is no new information that would cause this court to keep this matter open and there is nothing that rises to the level of fraud or misrepresentation of the inability of this petitioner to clearly understand the circumstances that have been present since 2004 in this case.
This appeal followed. In it, Cole claims that Rule 4:85-1 is not applicable to her action, and she seeks reversal of the judge's ruling. We agree and reverse, remanding the matter to permit a formal accounting to be filed.
As stated, Francesco Racamato died on November 3, 2003. Within a week of his death, Cole contacted attorneys for the estate to request copies of both of her parents' wills and living wills. On January 10, 2004, Pignatello wrote a letter to her siblings, including Cole, "asking each of you to inform me as to your interest in acquiring" any items of decedent's personal property, including wearing apparel, jewelry, household furniture and furnishings within thirty days. Cole did not respond and denies receipt of the letter.
Thereafter, on April 29, 2004, an attorney retained by Cole wrote to Dariusz Winnicki to "inquire as to the status" of the estate. Winnicki responded by letter dated August 2, 2004 advising that Pignatello was "in a position to make residuary distributions to the beneficiaries" in accordance with decedent's will. He enclosed an informal estate accounting, "which incorporate[d] the checkbook register for receipts and expenses with proposed disbursements and distributions for each beneficiary," copies of the five promissory notes given in connection with loans to the estate by Cole's five siblings, and a copy of the uniform settlement statement for the sale of decedent's residence. Winnicki requested, if Cole found the estate accounting acceptable, that she sign and return a refunding bond and release so that cash distributions could be made. The informal accounting identified the total value of the estate as $581,566.63, the value of the residual estate as $400,715.46, and Cole's share of the residual estate as $66,785.90. The residence had been sold for $450,000; personal and household property was valued at $500.
By letter dated October 4, 2004, Winnicki sought Cole's response to his August letter. Cole's attorney responded that he had promptly forwarded the materials to Cole, but had not heard further from her. No activity was evident thereafter until January 10, 2007 when Winnicki wrote to Cole, reminding her that an estate accounting, refunding bond and release had been forwarded to her in August 2004 and that no response had been received. Winnicki stated that: "The Executrix may not release the funds to you until our office receives the executed documents signed by you."
Cole answered Winnicki's letter on February 6, 2007 demanding an extensive list of documents pertaining to both of her parents, including deeds, last wills and testaments, powers of attorney and other legal documents, closing statements for two properties owned by the parents, as well as various documents relating to services rendered by Winnicki's firm and documents pertaining to time periods from December 1997 to January 1998 and from January to March 2002. Additionally Cole requested that Winnicki re-send all materials forwarded to her in August 2004. In a letter dated February 16, 2007, Cole noted that she had not received the requested documents and asserted that she "will hold no one harmless nor indemnify anyone for any actions and/or involvement" in the estate matter.
At some point, the assets of the estate, with the exception of Cole's portion, were distributed. Decedent's furniture and other personal effects were distributed among Cole's ...