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In re Estate of Sand

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 1, 2010

IN THE MATTER OF THE ESTATE OF LUCILLE SAND, DECEASED.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County, Docket No. 0-9820.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 2010

Before Judges Baxter and Koblitz.

This is a probate matter, in which appellant Sandra Singer appeals from an October 7, 2008 order that granted summary judgment to her two sisters, Thea and Paula Singer, and denied Sandra's cross-motion. The order admitted to probate the December 4, 2002 last will and testament of their mother Lucille Sand (decedent), as well as the February 2, 2005 first codicil; directed the Surrogate of Union County to issue letters testamentary to Thea and Paula as co-executrixes; and dismissed the caveat to the will filed by Sandra in which she alleged undue influence, fraud, lack of testamentary capacity and forgery. We affirm.

I.

Lucille Sand died on March 12, 2008, survived by four daughters and two stepchildren. She left a will dated December 4, 2002, in which she bequeathed the sum of $25,000 to Sandra. With the exception of a bequest to her stepchildren of her interest in a mutual stock fund, decedent's will left the balance of her estate in unequal shares to Sandra's three sisters, Thea, Paula, and Candice. Decedent nominated and appointed Thea and Paula as co-executrixes. In the will, decedent expressly acknowledged that she had four adult children, Thea, Paula, Candice and Sandra. The will contained an in terrorem clause, which provided that if any beneficiary should contest the probate or validity of the will, then all benefits provided for such beneficiary were revoked and the legacy would be redistributed to the remaining beneficiaries, regardless of whether any such challenge was instituted in good faith.

In the presence of two witnesses, Marie Santucci and Lisa Wagman, decedent acknowledged the will as her "last will and testament" and she swore that she "signed it willingly and voluntarily for the purposes expressed therein." She also certified that she was over the age of eighteen, "of sound mind," and was "not acting under any constraint or undue influence." Santucci and Wagman each certified that in the presence of each other, they had witnessed Lucille sign the will and had heard her declare the document to be her last will and testament. They also swore that to the best of their knowledge, the testatrix was "over the age of eighteen and of sound mind, and not acting under any constraint or undue influence." The February 2005 codicil amended the will by changing the distribution of the residual estate to make the bequests to Thea, Paula and Candice equal one-third shares.

In their complaint seeking to admit their mother's December 2002 will to probate, Thea and Paula asserted that their mother had been estranged from Sandra ever since 1973, their mother was of sound mind when she signed the will and all bequests were the product of her own free will.

In her answer to her sisters' complaint, Sandra asserted that the alleged will and codicil were forgeries, or decedent lacked testamentary capacity when she prepared the will or had been subjected to undue influence. Sandra also maintained that her mother had made a "contract" with her, in which she agreed to bequeath to Sandra twenty-five percent of the family home in Westfield, along with twenty-five percent of her jewelry and other personal property. Sandra contended that the alleged will was "against everything the decedent said she stood for" and consequently "[o]nly a person lacking testamentary capacity" or subjected to undue influence or fraud could have left a will in which Sandra was bequeathed only $25,000 of a $2 million estate. Finally, Sandra's answer asserted that the will was rendered void because it contained an in terrorem clause in violation of the applicable statute, N.J.S.A. 3B:3-47.

Sandra also asserted a nine-part counterclaim, which included her contentions that: 1) the "alleged will is invalid" because it "breach[ed] [the] contracts" made by decedent guaranteeing her a twenty-five percent share of the estate; 2) the will was "void on its face" because the will did "not show that the decedent comprehended who is a natural object of her bounty" and the will made no statement "explain[ing] the unnatural and abnormal statements in this alleged will"; 3) the "issue of [the] validity of [the] will is moot" as she was owed more from the estate than the entire estate corpus was worth; 4) she was "owed money by [the] estate" and Thea and Paula were acting in bad faith by refusing to satisfy that claim; 5) Thea and Paula were "not fit to be executors" because they were "conspiring to maliciously steal [her] share of the estate for themselves," thereby creating a conflict of interest, and Thea "admitted that she knew the contents of the alleged will before the decedent died" and "was present when the alleged will was signed," thereby demonstrating "undue influence"; 6) her two sisters and the law firm representing them had engaged in abuse of process and malicious prosecution; 7) her sisters and the law firm had intentionally inflicted emotional distress upon her; 8) her sisters and the law firm had engaged in an "unfair or deceptive business practice"; and 9) Thea and Paula committed "other wrongful acts . . . outside of the will for which they are liable."

In support of their summary judgment motion, Thea and Paula submitted an affidavit from Eliot M. Goldstein, the attorney who prepared Lucille's December 2002 will. Goldstein certified that in October 2002, he met with Lucille, her accountant and financial adviser for approximately two hours to discuss modifications to her estate planning documents, all of which had been prepared for Lucille six years earlier by a member of Goldstein's firm. In relevant part, Goldstein's certification stated:

Although Lucille was suffering from emphysema, I remember her to be an articulate woman in clear possession of her faculties and her own desires.

Among other things, we discussed her four (4) daughters and her relationship with each.

Lucille informed me that she had been estranged from her daughter Sandra Singer, a/k/a Sandi Singer, for quite some time and intended to only leave a small bequest to Sandi, with the bulk of her estate passing to her three (3) other daughters, either in trust or outright.

An in terrorem clause was discussed at the meeting and ultimately inserted into Lucille's Last Will and Testament, at her request.

It is my professional practice not to allow clients to execute documents who I believe lack the requisite mental capacity or who may be acting as a result of being unduly influenced by a third party.

Thea and Paula also submitted an affidavit from attorney Joel G. Cohen, who had prepared the codicil. As Goldstein had done, Cohen explained that it was his practice whenever meeting with a client in an estate matter to determine if the client was under any duress and ensure that the client understood the "meaning and seriousness" of the documents. When he met with decedent on February 2, 2005, "at no time" did she "indicate any behavior" that led him to believe that the codicil "was other than fully intended and understood."

In opposition to Thea and Paula's motion for summary judgment, and in support of her cross-motion, appellant submitted the following documents: her own affidavit, which we shall describe shortly; a letter from the Department of Treasury, Division of Pensions and Benefits, acknowledging decedent's death and stating that the estate was entitled to receive $152.90 as "an allowance" due the decedent for the month in which she died; a note dated May 19, 2008 purporting to be written on Merrill Lynch letterhead by a person whose initials are largely indecipherable, stating "[a]s we discussed, you are 1/4 beneficiary of the attached IRA"; letters purportedly written by her aunt Beatrice Grossman making disparaging remarks about Thea; several computer-generated documents showing that Candice had been convicted of various criminal offenses in Oregon; and two bail bonds posted by decedent on Candice's behalf.

In her twenty-one page affidavit, appellant repeated the same claims she had advanced in her answer and counterclaim, providing little additional detail and no substantiation. In fact, she acknowledged that she had "started to write interrogatories but the extreme and outrageous acts here caused such severe despair, despondency, and emotional distress of a nature which no person could be expected to endure as to slow things down [sic]. It is unlikely that interrogatories will do much good as plaintiffs are likely to lie." She also asserted that she had spoken "to a witness," whose name she did not provide, who knew the decedent "well." According to Sandra, the unnamed witness maintained that decedent "would never knowingly have written a will like this" and Thea must have "exercise[d] undue influence." Sandra also maintained that Goldstein had been uncooperative when she called his office to discuss the matter with him.

In her affidavit, Sandra also asserted that Paula had "perpetrated a fraud" and "lied" to her when she insisted that their mother was in good health "driving around in her car with her friends in New Jersey" when in fact decedent was sick and dying in a hospital in Massachusetts. Last, Sandra insisted that Paula had admitted the will was "unfair" and told her she wished she had known about the will before their mother died, because she would have encouraged her mother to give Sandra an equal share.

In an oral opinion, Judge Malone first addressed Sandra's argument that her claims as a creditor exceeded the aggregate value of the estate. The judge concluded that even if this were so, it would have no bearing on whether the will should be admitted to probate, and, as a creditor or claimant, Sandra had available to her a mechanism for presenting a financial claim against the estate.

Turning to the in terrorem clause,*fn1 the judge observed that even if the clause was not valid, its invalidity would have no bearing on whether the will should be admitted to probate. Instead, the clause would simply be stricken.

As to the claim of a conflict of interest by Thea and Paula, the judge observed that while Sandra was correct that by resisting Sandra's claims against the estate Thea and Paula might receive a larger share, any such conflict of interest had no bearing upon whether the will should be admitted to probate. It merely potentially affected Thea and Paula's designation as executrixes. The judge also noted that Thea and Paula's "perceived hostility" toward Sandra, while "personally distressing to her," had no bearing on whether the will should be admitted to probate. For all of those reasons, the judge rejected appellant's threshold arguments concerning the admission of the will to probate.

Turning to Sandra's claims that her mother lacked testamentary capacity and had been subjected to undue influence, the judge noted that as the opponent of the will, Sandra was required to establish her claims by clear and convincing evidence. He concluded the evidence Sandra had presented failed to meet that demanding standard. In particular, he reasoned that on the issue of testamentary capacity, Sandra's claim was "essentially . . . that a person such as her mother [writing] a will . . . treating her . . . so differently than . . . her sisters, is evidence of an insane delusion, and therefore the lack of capacity." The judge concluded that the mere unequal treatment of one's offspring, standing alone, is insufficient proof of lack of capacity.

On the issue of undue influence, the judge agreed with Sandra that her sisters were indeed in a confidential relationship with their mother. He rejected, however, Sandra's claim that by acting in a manner that was "not forthcoming with information regarding the mother's state of health" and by "threaten[ing]" not to pay Sandra the non-probate asset (the IRA account) to which she was entitled, Thea and Paula had behaved in a manner suggestive of undue influence. The judge emphasized that the conduct of Thea and Paula in not being truthful about their mother's health and threatening not to pay the IRA account to Sandra had both occurred long after the will was prepared in 2005, and was therefore of no consequence on the issue of undue influence.

The judge further reasoned that compared to Sandra's meager proofs on the issue of undue influence, he had been presented with certifications from the two lawyers who prepared the will and codicil on separate occasions, some two years apart, attesting to their belief that decedent had acted of her own free will. For all of those reasons, Judge Malone concluded that nothing Sandra had presented was sufficient to raise a genuine issue of material fact that would preclude the granting of summary judgment in favor of Thea and Paula. Consequently, he determined that the will should be admitted to probate.

As to the counterclaims, the judge dismissed all nine, reasoning that they were "not in any way germane to the issue of admissibility of the will to probate."

On appeal, Sandra raises ten claims: 1) Thea and Paula's complaint should have been dismissed for lack of subject matter jurisdiction because they improperly filed the complaint as a summary action "and this case is not a summary action"; 2) the alleged will and codicil are void because they violate N.J.S.A. 3B:3-47; 3) the court should not have permitted Thea and Paula to become executors; 4) the will is invalid because it is a result of "insane delusions by decedent" or "fraud" by Thea, Paula and Candice "seeking to steal" Sandra's share of the estate; 5) the court's pretrial discovery orders were erroneous; 6) summary judgment should not have been granted because there were material disputes of fact; 7) the judge erred in ruling that claims against an estate cannot be filed in the Probate Part; 8) the judge erred by failing to advise her of her right to a lawyer paid for by the estate; 9) "if the ruling was made before the hearing, it violated due process by making a ruling in a case before the hearing was held"; and 10) the materials filed with the court should be impounded because they pertain to private family data "which is none of the public's business" and because the materials defamed her character.

II.

When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

A will is considered self-proving at the time of execution if: it is signed by the testator in the presence of two witnesses; the testator declares that such execution is his "free and voluntary act for the purposes therein expressed"; and the testator states he was "under no constraint or undue influence." N.J.S.A. 3B:3-4. Additionally, each witness must swear that he or she heard the testator declare that he signed the instrument willingly and that to the best of the witness's knowledge, the testator is over the age of eighteen and "of sound mind, and under no constraint or undue influence." Ibid. If a will was "executed and acknowledged in the manner provided in N.J.S.A. 3B:3-4," it "may be admitted to probate by the surrogate without further affidavit, deposition or proof." N.J.S.A. 3B:3-19. Thus, the requirements for admitting a self- proving will to probate are limited to the proper execution and acknowledgment of the will.

As the Court observed in Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981), "[i]n any attack upon the validity of a will, it is generally presumed that 'the testator was of sound mind and competent when he executed the will.'" (quoting Gellert v. Livingston, 5 N.J. 65, 71 (1950)). However, if the drafting of the will, or any of its provisions, was a result of "undue influence," the will may be set aside. Id. at 176. The Court defined the term "undue influence" as "mental, moral or physical exertion which has destroyed the free agency of a testator by presenting the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another." Id. at 176. (internal quotations and citations omitted.) When a claim of undue influence is advanced, the burden of proving that claim shifts to the proponent of the will whenever the proponent is in a confidential relationship to the testator and there are "additional circumstances of a suspicious character present which require explanation." Ibid. (quoting In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1995)).

Applying these standards, we are satisfied that the will was properly admitted to probate, as it complied with the execution and attestation requirements of N.J.S.A. 3B:3-4 and N.J.S.A. 3B:3-19. We are likewise satisfied that Judge Malone properly determined that Sandra's claim of undue influence rested on nothing more than the disparate treatment of herself and her sisters, which was plainly insufficient to demonstrate the "suspicious circumstances" required by Haynes. We likewise agree with the judge's conclusion that the proofs submitted by Sandra were not sufficient to establish by clear and convincing evidence that the presumption in favor of testamentary capacity had been overcome, especially in light of the uncontroverted evidence presented by the two lawyers, Goldstein and Cohen. We thus reject the claims Sandra advances in points four and six.

As to Sandra's contention that the will and codicil are void because they violate N.J.S.A. 3B:3-47, we agree with the judge that the inclusion of an unenforceable in terrorem clause does not invalidate the will. It merely makes the clause unenforceable. We thus reject the claim Sandra presents in point two.

We turn to point one, in which Sandra maintains that the judge should not have proceeded in a summary fashion, but should instead have conducted a plenary hearing or a trial. We cannot agree. First, we note that actions in the Probate Part are brought in a summary manner pursuant to Rule 4:83-1. Because Sandra's opposition to Thea and Paula's motion for summary judgment failed to raise a genuine issue of material fact, the judge was authorized, and was indeed required, to dispense with a trial and determine whether the moving party was entitled to judgment as a matter of law. R. 4:46-2(c). We thus reject the claim advanced in point one.

Appellant's remaining claims lack sufficient merit to warrant extended discussion in a written opinion. We consequently decline to consider them further. R. 2:11-3(e)(1)(E).

Affirmed.


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