March 10, 2011
IN THE MATTER OF THE ESTATE OF ALLAN C. SCHENECKER, DECEASED.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-67-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2010
Before Judges Graves and Waugh.
Defendant Joan Bennett-Schenecker, the widow of Allan C. Schenecker,
appeals from three orders entered by the Probate Part in favor of
plaintiff Stephanie Godfrey, Schenecker's daughter.*fn1
The first order admitted to probate a copy of Schenecker's
November 29, 2006 will. The second order denied Bennett's application
to be treated as an "omitted spouse" under
N.J.S.A. 3B:5-15. The third order denied Bennett's application for
counsel fees. We affirm on the merits, but remand to the trial judge
for further consideration of the issue of counsel fees.
I. We discern the following facts and procedural history from the record on appeal.
Bennett, a real estate broker, met and began a friendship with Schenecker, a heavy equipment operator, in approximately June 1988. In 1992, they began a business partnership in which she found, negotiated the purchase of, and then managed investment properties for Schenecker, who funded the purchases. On September 20, 2006, Schenecker executed a power of attorney authorizing Bennett to "attend to all of [his] financial affairs," including the endorsement and deposit of checks.
According to Bennett, the couple also shared a "unique" romantic relationship for many years. On November 20, 2006, Schenecker purchased a residence in Tinton Falls, in which he and Bennett resided as of the purchase date. On November 29, 2006, Schenecker executed a will, leaving the residence to Bennett and the residue of his estate to Godfrey.
Shortly after the purchase of the residence, Schenecker signed a deed, which was never recorded, transferring title from his name to himself and Bennett. Although the typed portion of the deed did not state the nature of the shared ownership, "(JTWROS)" followed by Schenecker's initials was handwritten next to their names.*fn2
On January 9, 2008, at his attorney's office, Schenecker executed another deed for the residence. That deed transferred ownership from Schenecker to Bennett and Schenecker "as joint tenants with the right of survivorship." The deed was recorded on January 15, 2008.
Also in January 2008, Schenecker was hospitalized and diagnosed with pneumonia and, ultimately, lung cancer. Bennett cared for him throughout the entirety of his subsequent illness. Bennett and Schenecker were married on August 29, 2008. Schenecker died on January 8, 2009.
As the surviving spouse, Bennett received letters of administration for Schenecker's estate on February 12, 2009. Godfrey filed a complaint on February 27, 2009, seeking to probate a copy of the November 29, 2006 will, which had named her as executor and primary beneficiary. An amended complaint was filed on March 4, 2009, seeking substantially the same relief. The Probate Part judge subsequently entered an interim consent order governing the administration of the estate and granting Bennett a support allowance of $5000 per month pursuant to N.J.S.A. 3B:3-30, which allows for an allowance to a surviving spouse during a will contest.
Bennett filed an answer to the amended complaint on July 10, 2009. In her answer, Bennett asserted two defenses in the alternative: (1) that Schenecker destroyed the original November 20, 2006 will and, consequently, died intestate; or (2) that, if the will were to be admitted to probate, she was entitled to an intestate share as an omitted spouse pursuant to N.J.S.A. 3B:5-15. Her interim support in the amount of $5000 per month was continued in an October 2, 2009 order.
During a two-day trial on December 8 and 9, 2009, the judge took testimony from eight witnesses. Godfrey offered two witnesses, herself and Paul Jamison, an attorney. Jamison testified that after meeting Schenecker in 1995, they worked together on approximately twenty legal matters, including a number of real estate acquisitions. Jamison "came to know him pretty well," and considered himself a "friend" of Schenecker's.
Jamison testified that he worked with Schenecker on the purchase of the residence in Tinton Falls. Although Jamison believed both parties "ultimately" intended to share the property, Bennett received no interest in the property at the time of the purchase.
According to Jamison, Bennett called him during the week prior to the closing and told him she wanted her name on the deed. He told Bennett that he could not put her name on the deed for two reasons. First, she was not his client. Second, the mortgage loan had been prepared in Schenecker's name alone, so inclusion of her name on the deed would violate the closing instructions and prevent closure on the loan.
Jamison testified that shortly after the closing, Schenecker expressed a concern about protecting Bennett "in the event that [he] passed away." Because Bennett could not receive an interest in the property "until a title policy had been issued," Jamison suggested that Schenecker execute a will leaving her the property "as an intermediate measure." According to Jamison, Schenecker agreed and the two of them drafted a will on the spot.
Asked whether "it was [Schenecker's] decision to put those parties in that will in that way," Jamison responded that it was. Jamison testified that he did not expect Schenecker to execute another will because the November 29, 2006 will was consistent with the "reconciliation" Schenecker had undergone with his daughter and his newfound closeness with his grandchildren. According to Jamison, who considered himself Schenecker's attorney until his death, Schenecker never told him that he had destroyed the will. Jamison further testified that Schenecker "never expressed . . . an expectation or a desire to prepare or execute another will."
Jamsion further testified that, even after the execution of the will, Bennett and Schenecker continued to request that he modify the way in which title was held. Although he advised them not to act until the title policy had been issued, Jamison prepared a deed transferring the residence from the Schenecker to Bennett and Schenecker. He delivered it to them in December 2006.
According to Jamison, Schenecker approached him again in December 2007 and wanted to add Bennett's name to the deed. Jamison testified that he prepared another deed transferring the residence to them as joint tenants with right of survivorship. That deed was executed and recorded in early January 2008.
Godfrey testified that she was Schenecker's only child. She had lived with her mother following her parents' divorce in the 1970s, but she maintained contact with her father, who would see her "now and then." Godfrey further testified that once she had children of her own, her father would visit them and attend their extracurricular events. According to Godfrey, her father told her that her children's college education would be "taken care of." Nonetheless, Godfrey admitted that at Schenecker's funeral, she had characterized their relationship as "F'd up."
Godfrey testified that she first learned of the will in January 2008 when she visited her father in the hospital. Bennett took her and her husband aside and told them "there was a will stating that [Godfrey] was executrix and [Bennett] would be getting the house, [and Godfrey] would be getting everything else."
According to Godfrey, she went to have dinner with her father and Bennett at their residence after her father had been released from the hospital. She testified that Bennett and Schenecker were arguing. When Godfrey and Schenecker left the home to have dinner alone, her father was very upset:
He was yelling in the car. He said it didn't matter that I was the executrix and I was in the will and that [Bennett] would be getting the house. It was no one's business. That it had nothing to [do] with anything. He wanted peace . . . for as long as he had. And he didn't want to discuss it anymore. It was done and taken care of.
Asked what her father said about the contents of the will, Godfrey responded that "he wanted to make sure [Bennett] had the home" and "[Godfrey] was left everything else." Godfrey stated that she never discussed the will with her father again.
Godfrey testified that on January 20, 2009, after her father's death, she went to the Tinton Falls home to visit Bennett. At that time, Bennett told her that she had been looking for the will but could not find it. Godfrey stated that she helped her search, but the original will was never found. According to Godfrey, Bennett did not tell her that she had seen Schenecker "rip up a copy of the will" until October 2009.
On cross-examination, Godfrey was asked about an e-mail she sent Bennett on June 28, 2009, in which she said, "I believe that [my father's] intention was to take care of both of us, even though he never corrected his will to reflect it." She confirmed that such was her belief. Godfrey also testified that, at some point in July 2008, her father had told her that he intended to marry Bennett in August so that she would be able to collect his pension and Social Security benefits if he died.
Bennett presented several witnesses who testified that Schenecker was not close to Godfrey and that Bennett claimed to have been told by Schenecker that he destroyed the will and was going to make a new one prior to his death. Randolph H. Wolf (Wolf), an attorney, testified that he knew both Bennett and Schenecker independently. He had prepared a will for Bennett in July 2008. At that time, according to Wolf, Schenecker stated that he did not have a will and described his testimonial intentions as follows: "[Schenecker] told me he wanted to take care of [Bennett] . . . and he wanted to take care of his grandchildren. He also mentioned that he . . . had not had a relationship for many years with his daughter and did not want to leave her anything." When Wolf told Schenecker that he lacked the expertise to draft a will for so complex an estate, Bennett "chimed in 'You're not going to Paul Jamison' in rather an angry tone of voice." According to Wolf, Schenecker responded that he would go to somebody else.
Bennett testified about her relationship with Schenecker at length. She also asserted that his relationship with Jamison had deteriorated prior to his death. Bennett testified that in August 2007, after Schenecker lost money on one particular real estate transaction handled by Jamison, he agreed not to use him anymore. After that time, according to Bennett, "[h]e didn't use [Jamison] for anything anymore" and did not consider him his attorney by the time of his death.
Regarding the residence, Bennett explained why she was not listed as a buyer on the deed:
I had been a witness to a murder on my front lawn. And I not only went to court once, I went to court twice. There were threats made up in Union County. And I, at that point in time, had not filed taxes for a couple years, because I was in hiding. I used my old name and I became a blonde. And so, until I had my tax situation straightened out, I couldn't go on the mortgage. I could go on the deed, but not on the mortgage.
Bennett also testified that she had bronchitis in the weeks prior to the November 20, 2006 closing, and denied that she had spoken with Jamison about the deed prior to the closing.
Bennett testified that she was "furious" about being omitted from the deed because of the risk that Schenecker would "get pissed off" and kick her out of the house. For that reason, when the December 2007 deed was prepared, she insisted that she and Schenecker be listed as joint tenants with the right of survivorship. Bennett further explained that she and Schenecker never recorded the December 2006 deed because they had to "wait until title came in" and, once it did, other events prevented them from attending to the problem.
Bennett testified that Godfrey and her father "didn't get along" because he felt she "had an attitude" and did not "show respect." Nevertheless, Bennett maintained that she encouraged him to reconcile with Godfrey.
According to Bennett, at the end of 2006, she found "papers laying on the kitchen table" that included a copy of the will. She told Schenecker that the will was foolish because it would have "tax consequences" and "have to go to probate, and that's not what we intended." She also noted that it excluded his grandchildren. According to Bennett, he said it was all "taken care of" and "ripped that piece of [paper] up."
Bennett testified that she "thought that there was going to be . . . a new will . . . that [Schenecker] said he was going to do . . . . " She expected the new will to grant Godfrey "the money at Wachovia," give Bennett his real estate holdings, and set up trust funds for his two grandchildren.
Bennett further testified that Schenecker "didn't realize he was dying" until November 2008. She asserted that his chemotherapy often left him "zonked out." "[T]here were times that he was heavy into chemo and stuff, that he was just zonked out. He was no good. He couldn't really function at all. As time went on, he couldn't really walk. I had bells on his ankles and bells on the doors." She confirmed that she called Jamison one day when Schenecker was going to his office to pay an overdue bill and that she asked Jamison to make sure that he was healthy enough to drive himself home, but denied Jamison's assertion that she had told him not to let Schenecker make any major decisions, such as changing his will.
According to Bennett, Schenecker married her at the urging of one of his union colleagues, who had told him that he and Bennett "need to get married for her to get the benefit of the pension before you retire [in September]." She stated that he told her they were getting married so she "would be well taken care of and . . . never have to worry again." According to Bennett, she was ineligible for Social Security benefits because they were not married long enough.
After Schenecker died, Bennett began searching for his will. Although she acknowledged that she called Jamison to tell him that Schenecker had died, she testified that she did not ask him for the original will because she "didn't think he would have one." She testified that she made a thorough search for a will, but did not find one.
In a detailed oral decision rendered on December 22, 2009, the trial judge found, by clear and convincing evidence, that the 2006 will had not been destroyed or revoked by Schenecker. In delivering her opinion, she reviewed the testimony of the witnesses and assessed their credibility. In doing so, she found that Bennett's testimony that Schenecker had destroyed the will was not credible. She also found the testimony of some of Bennett's witnesses to be not credible, and that the statements attributed to Schenecker by Wolf were only made to placate Bennett.
The judge further found that the terms of the will, i.e., that Bennett receive the Tinton Falls residence and Godfrey receive the remainder of his estate, remained his testamentary intent throughout the remainder of his life. Consequently, she concluded he did not destroy the will or have any intent to make a new one.
Based on her findings of fact and conclusions of law, the judge entered an order on December 23, 2009, admitting a copy of the November 29, 2006 will to probate. The order also provided that "[t]he [March 26, 2009] support order previously entered [would remain] in effect until further order of the court."
In February 2010, Godfrey and Bennett filed cross-motions addressed to the issue of whether Bennett was an omitted spouse under N.J.S.A. 3B:5-15 and whether she was entitled to continuation of the previously ordered temporary support. Godfrey also sought an order requiring Bennett to assume responsibility for the mortgage on the residence.*fn3
In an oral decision rendered on March 24, 2010, the judge determined that Bennett was not an omitted spouse. She found "that the transfer of the house to [Bennett] through the will and the deed and marrying her to give her [his] pension and Social Security, [establish] that the testator provided for the spouse pursuant to N.J.S.A. 3B:5-." As a result, she held that Bennett was no longer entitled to support under N.J.S.A. 3B:3-30. She also ordered Bennett to assume responsibility for the mortgage on the residence, of which she was then the sole owner. An order embodying that decision was entered the same day.
In April 2010, Bennett filed a motion seeking a stay of administration of the estate and the termination of the temporary support, pending appeal. She also sought an award of counsel fees for the litigation and for her temporary administration of the estate. Godfrey cross-moved for counsel fees and other relief not relevant to this appeal.
In an oral decision entered on May 7, 2010, the judge denied Bennett's requests. She also denied Godfrey's cross-motion for counsel fees. Two orders to effectuate those decisions were entered on the same day.
This appeal followed. We denied Bennett's motion to reinstate interim support pending appeal.
II. On appeal, Bennett argues that the trial judge erred in finding that the 2006 will had not been destroyed and, if the copy of the will was properly admitted to probate, that she was not an omitted spouse entitled to an intestate share of her husband's estate pursuant to N.J.S.A. 3B:5-15. She also argues that the judge erred in denying her application for counsel fees, inasmuch as Rule 4:42-9(a)(3) allows an award to an unsuccessful opponent of a will offered for probate. Godfrey argues that the trial judge's decisions were supported by the facts as she found them and by the applicable law.
On this appeal, we review a decision reached by the trial judge following a bench trial. "The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981).
However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Our review of the judge's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When a missing will was last seen in the custody of the testator, there is a presumption that the testator destroyed the will with the intent to revoke it. The former Court of Errors and Appeals described the presumption as follows:
The law of this state applicable to the establishment of lost wills is well defined. If such a will was last seen in the custody of the testatrix or she had access to it the fact that it cannot be found after her death raises the presumption that she destroyed it animo revocandi. This presumption may be rebutted but in order so to do the evidence must be clear, satisfactory and convincing and the burden is on the proponents. The proof necessary to rebut the presumption of revocation must be sufficient to exclude every possibility of a destruction of the will by the testatrix herself. In re [Willitt's] Estate, 46 A. 519 [(Prerog. Ct. 1900)]; In re Calef's Will, 109 N.J. Eq. 181 [(Prerog. Ct. 1931)]; affirmed, on opinion below, 111 N.J. Eq. 355 [(E. & A. 1932), cert. denied, 288 U.S. 606, 53 S. Ct. 397, 77 L. Ed. 981 (1933)]. [In re Bryan, 125 N.J. Eq. 471, 473-74 (E. & A. 1939).]
See also In re Davis, 127 N.J. Eq. 55, 57 (E. & A. 1940) (quoting Bryan); In re Estate of Jensen, 141 N.J. Eq. 222, 225 (Prerog. Ct. 1947) (stating proof offered to rebut the presumption "must be sufficient to exclude every possibility of a destruction of the will by the [testator]"), aff'd, 142 N.J. Eq. 242 (E. & A. 1948).
The trial judge's core finding on the issue of revocation of the will by Schenecker is as follows:
I find the testimony to be truthful from Mr. Jamison that Miss Bennet[t] called after Allan Schenecker died and asked for a will. I find that testimony credible. She believed that there was a will and she believed that the will was the original will that she saw.
So I find that it has been proven by clear and convincing evidence that Mr. Schenecker did not lose the will. I find that he did not destroy the will. He did not intend to revoke it. I find that all his actions surround from before the closing at [the Tinton Falls residence] up until the date of his death. He wanted to take care of Miss Bennet[t], he wanted to take care of his daughter, and the way he was going to do that was to leave the house to Miss Bennet[t], leave the rest to his daughter, and he was going to marry Miss Bennet[t] so that she would get his pension.
So, again, I find by clear and convincing evidence that the will was not destroyed, the will is not lost and that Mr. Schenecker did not have the intent to revoke it.
Bennett argues that the judge's opinion is problematic because she does not explain what happened to the original will, having found that it was not lost or destroyed by Schenecker. In In re Will of Roman, 80 N.J. Super. 481, 483 (Cty. Ct. 1963), the former County Court held that "[c]lear and convincing evidence must be shown with reference to . . . the circumstances under which the will was lost, stolen or destroyed." We are not bound by that decision, and decline to follow it. Although the cases cited above express concern about the circumstances under which the original will went missing, that concern is based upon a presumption that the testator destroyed the will "animo revocandi," i.e., with the intent to revoke it. Bryan, supra, 125 N.J. Eq. at 474.
In our view, the key issue in a case such as this is whether the testator had the intent to revoke the missing will, even assuming he or she may have had the opportunity to do so. The trial judge found by clear and convincing evidence that, whatever may have happened to the original, Schenecker did not intend to revoke the will. She concluded, based upon consideration of extensive testimony as informed by her credibility findings, that the terms of the will were fully consistent with Schenecker's testamentary intentions from the time of its execution to the time of his death, despite the intervening marriage to Bennett. Those intentions were to confer the residence on Bennett and the remainder of his estate on his daughter, Godfrey. The purpose of the marriage was to enable Bennett to receive pension and Social Security benefits that would only be available to her as his wife.
Our review of the record convinces us that the judge's conclusions are fully supported by the record, even under the heightened clear and convincing standard. At the time he purchased the residence, Schenecker wanted Bennett to have an ownership interest even though she had not contributed to the purchase price. When he became terminally ill, Schenecker was advised by a union colleague that he should marry Bennett to enable her to obtain his pension benefits and Social Security. The judge found, and the evidence supports, that this was all he intended to confer on her as his wife and that, accordingly, he never revoked the will and never made an effort to make a new will.
Bennett's argument that the will was destroyed by Schenecker after the deed transferring the property to their joint names was recorded in January 2008 is undercut by Godfrey's testimony, found credible by the judge, that Bennett told her about the will at the hospital later in January 2008, after Schenecker had fallen ill, and that Schenecker himself told her about the will in February 2008, after he was released from the hospital. Bennett's assertions that she saw or was told of the destruction of the will by Schenecker were not credited by the judge.
The judge's findings that, up to the time of his death, Schenecker intended to provide for Bennett only through the will and by marrying her so that she could get his pension and Social Security benefits also supports the judge's subsequent conclusion that Bennett was not an omitted spouse entitled to her intestate share of the estate pursuant to N.J.S.A. 3B:5-15(a)(3). We see no need for an extended discussion of that issue. R. 2:11-3(e)(1)(E).
Finally, we address Bennett's argument that she was entitled to an award of counsel fees even if the trial judge's other decisions are affirmed on appeal. She relies on Rule 4:42-9(a)(3), which provides in pertinent part: "If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate."
"Reasonable cause" under the rule requires the moving party to "provide the court with 'a factual background reasonably justifying the inquiry as to the testamentary sufficiency of the instrument by the legal process.'" In re Will & Codicil of Macool, 416 N.J. Super. 298, 313 (App. Div. 2010) (quoting In re Will of Caruso, 18 N.J. 26, 35 (1955)). "That being said, '[e]xcept in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a will dispute.'" Ibid. (quoting In re Reisdorf, 80 N.J. 319, 326 (1979)).
The trial judge stated her reasons for denying fees as follows:
I find that [plaintiff] had to bring the action. She was the contestant at this point. She's the one who brought the action. She prevailed. . . . I find that there is no cause to grant counsel fees to [defendant]. So that part of the motion will be denied.
We are unable to determine from the judge's statement whether she considered the factors set forth in Rule 4:42-9(a)(3) and determined that Bennett had presented "a weak or meretricious case," or whether she merely concluded that Bennett was not entitled to an award of fees because she had been unsuccessful. In addition, the judge does not appear to have addressed the question of whether Bennett is entitled to any recompense or fees in connection with her temporary administration of the estate. Consequently, we remand those issues to the trial judge for her further consideration. We express no opinion on the merits of those issues.
In summary, we affirm the order admitting the November 29, 2006 will to probate and the order determining that Bennett was not an "omitted spouse" pursuant to N.J.S.A. 3B:5-15. We remand the issues of counsel fees and temporary estate administration for further consideration by the trial judge.
Affirmed in part; remanded in part.