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In the Matter of the Estate of

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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