On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Burlington County, Docket No. 2008-2103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 3, 2011 - Decided Before Judges Cuff, Simonelli, and Fasciale.
In this probate matter, the Chancery Part judge summarily decided that a typed document signed by William W. Walb, Jr. (decedent) was a legally cognizable addendum, not a codicil, to his Last Will and Testament (Will) pursuant to N.J.S.A. 3B:3-1. The judge concluded the addendum was valid and enforceable as to the disposition of the decedent's tangible personal property but not his real property and money from the net estate. We conclude that a plenary hearing was required to determine whether the decedent intended the addendum to constitute an addition to or alteration of the Will.
The decedent executed the Will on January 24, 2003, bequeathing certain personal property and percentages of his net estate to certain long-time friends,*fn1 and approximately 81% of this net estate to his alma mater, respondent Albright College. The Will also contained the following provision: It is my intention to prepare a list of various items of my personal property with an indication as to which of my various friends and relatives should receive each item upon my death. This list will be informal in form, and may be in my own handwriting. I may, from time to time, make various additions, deletions, interlineations, or other modifications to this list. I hereby direct that my Executor shall distribute, in kind, my personal property in accordance with this list in whatever form it may take at the time of my death as if set forth fully herein. It is further my intention to keep this list with this, my Will. Such list shall not be deemed invalid due to any interlineations or other obvious modifications[.]
After executing the Will, the decedent made two inter vivos gifts to Albright College: one in June 2007 of 4000 shares of Wachovia Corp. stock, valued at $214,840, and the other in September 2007 of $24,143.92. Shortly thereafter, on February 6, 2008, he executed a document, dated February 8, 2008, entitled "Addendum to Last Will and Testament of William W. Walb Jr." The addendum bequeathed certain personal property to Thomas Walb, his nephew, and respondent Shirley Waters (Waters), his long-time friend and attorney-in-fact. It also bequeathed the decedent's home and all of its contents and furnishings to appellants, his long-time friends and neighbors, and made the following distributions of the net estate: (1) 25% to Waters; (2) 5% to Susanna Ndisiro, his caretaker; and (3) 3% to Kathy Van Sciver, a nurse who cared for his wife before she died. With this distribution change, Albright College would receive approximately 60% of the net estate.
The decedent died on September 19, 2008, and the Will was probated on October 2, 2008. After the probate, the executor discovered the addendum and filed an Order to Show Cause (OSC) and Verified Complaint pursuant to Rule 4:83-1 seeking to admit the addendum to probate as a codicil to the Will and declare it valid and binding as against all parties. Appellants and Waters sought to admit the addendum pursuant to N.J.S.A. 3B:3-3, claiming the decedent intended the document to constitute an addition to or alteration of the Will. Albright College objected to the addendum's admission, and alleged the decedent lacked testamentary capacity and Waters unduly influenced him.
There is no dispute that the addendum did not comply with N.J.S.A. 3B:3-2a(3) because it was not signed by at least two witnessing individuals. Accordingly, in order to treat the addendum as if it complied with N.J.S.A. 3B:3-2a(3), appellants would have to establish by clear and convincing evidence that the decedent intended it to constitute an addition to or alteration of the Will. N.J.S.A. 3B:3-3. To meet their burden, appellants submitted a certification setting forth facts establishing that the decedent intended to alter the Will. Waters submitted a certification setting forth facts establishing the decedent's competency at the time he signed the addendum and that she did not unduly influence him.
At oral argument of the OSC, appellants' and Waters's attorneys expressed the need for a plenary hearing to determine the decedent's intent in executing the addendum; however, the judge held no plenary hearing. Despite acknowledging that "the [d]ecedent may have believed that all dispositions [in the addendum] would be enforceable as written," the judge concluded the addendum was not a legally cognizable codicil; rather, it was an addendum governed by N.J.S.A. 3B:3-11 that can only dispose of the tangible personal property listed therein. Thus, the judge invalidated and found unenforceable "all purported gifts of real property or money in the form of a portion of the net estate[.]" The judge also concluded that even if N.J.S.A. 3B:3-3 applied, appellants and Waters failed to present clear and convincing evidence that the decedent intended the addendum to constitute an addition to or alteration of the Will.
Appellants filed a motion for reconsideration and a stay, arguing
there must be a plenary hearing because the addendum clearly indicates
the decedent's testamentary intent to change the Will. The judge
agreed that the addendum was an expression of the decedent's
testamentary intent; however, he denied reconsideration, concluding
that appellants acquiesced in the matter's summary disposition by
participating in the OSC without objection. The judge granted a stay
of the sale of the decedent's home conditioned on the posting of a
supersedeas bond in the amount of $225,000, which represented the
and estimated costs of appeal. This appeal followed.*fn2
In this appeal, appellants raise several issues; however,
because we conclude that a plenary hearing was required, we need not
address appellants' other contentions on appeal.
Generally, all actions in the Probate Part "shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to [Rule] 4:67." R. 4:83-1. Further, "where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move . . . for an order requiring all interested persons to show cause why probate of such will should not be granted." R. 4:85-3(a).
On the return date of the OSC, "[i]f no objection is made by any party . . . or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon." R. 4:67-5. However, if any party objects to such a trial and "'there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment.'" Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (quoting R. 4:67-5). "In a proceeding conducted under Rule 4:67-5, a court must make findings of fact, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing." MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 551 (App. Div. 2005).
We are satisfied that on the return date of the OSC, appellants sufficiently objected to the matter's summary disposition by expressing the need for a plenary hearing to determine the decedent's intent. Although this in and of itself made summary disposition inappropriate, we are also satisfied there are genuine issues of material fact as to whether the decedent intended to alter the Will. The addendum does more than bequeath tangible personal property; it bequeaths real property and alters the bequests in the Will, which presumably were to be derived from the decedent's assets, including the sale of the property. Further, the amount of the decedent's inter vivos gifts to Albright College, made shortly before he executed the addendum, comes ...