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In the Matter of the Estate of

December 13, 2010

IN THE MATTER OF THE ESTATE OF THOMAS ANTONELLI, DECEASED.


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, Docket No. C-298296.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 1, 2010

Before Judges Reisner and Alvarez.

Plaintiff Lucrezia Luberto appeals the denial of her motion for leave to file a complaint out-of-time contesting the probate of her father's will. She contends that she meets the requirements of Rule 4:85-2, which permits late filings where a movant can establish good cause for the delay and the absence of prejudice to interested parties. We affirm the decision of the motion court rejecting the application and dismissing plaintiff's complaint.

After plaintiff filed a verified complaint and an order to show cause on August 14, 2009, defendant Isabella Stallone, plaintiff's sister, filed an answer and a motion to dismiss the complaint as time-barred. On December 9, 2009, Judge Olivieri ruled from the bench that plaintiff had not established the necessary good cause required by Rule 4:85-2 and he dismissed the complaint with prejudice. This appeal followed.

Decedent, Thomas Antonelli, was plaintiff's father. He died December 18, 2008. It is undisputed that an earlier will, executed thirteen months prior to decedent's death, bequeathed seventy-five percent of his home and the entire residue of his estate to defendant. Under that will, plaintiff received twenty-five percent of the home. It is also undisputed that on November 27, 2007, decedent executed another will which was admitted to probate, making defendant his sole beneficiary and the executor of his estate. Plaintiff resides in Pennsylvania; defendant lived with her parents in this state, caring for them as they aged. For years prior to her death, the parties' mother, Rosina Antonelli, was quite ill and became progressively disabled.

The November 2007 will was admitted to probate on January 15, 2009, and plaintiff was noticed on January 29, 2009. She did not retain counsel until April 2009.

Plaintiff contends that the trial court abused its discretion because it did not find the circumstances alleged in support of the late filing to constitute the good cause required by Rule 4:85-2. Under the rules, an out-of-state litigant must file a complaint contesting a will within six months of probate. Rule 4:85-1. Plaintiff was required to file by July 15, 2009. Thus, her August 14 complaint was filed a month out of time.

Plaintiff's counsel submitted certifications in support of the application explaining that the delay beyond the six months under Rule 4:85-1, was occasioned by a planned visit from his son. Counsel further attributed the delay to visits from other family members and a step-son's wedding in Boston, which required him to travel for a few days.

Judge Olivieri stated that the late filing was due only to "oversight." As he said, the complaint could have been filed prior to or after counsel's visits with family. Hence, he concluded that the asserted circumstances did not constitute good cause, only mistake.

The phrase "good cause" has been interpreted as "a substantial reason that affords legal excuse for the default." Nemeth v. Otis Elevator Co., 55 N.J. Super. 493, 497 (App. Div. 1959). Moreover:

[g]ood cause is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the ...


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